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*v*-a 



A%U».rS 



•W<* 



REPORTS 



OP 



CASES AT LAW AND W CHANCERY 



AEGUED AND DETEBMINED IN THE 



SUPREME COURT OF ILLINOIS. 



NOEMAN L. FEEEMAN, 

EEPOETEE. 



VOLUME 98. 

Containing Oases in which Opinions weee filed in Febeuaey, 

Maech and May, 1881, and some Cases in which Opinions 

weee piled in Novembee, 1880, and in which 

eeheaeings weee denied at the 

Maech Teem, 1881. 



PEXNTED FOE THE EEPOETEE. 



SPRINGFIELD 

1881. 



Entered according to Act of Congress, in the year 1881, by 

NOEMAN L. FEEEMAN, 
In the office of the Librarian of Congress at Washington. 



H. W. EOKKEE, 
Stereotyper, Printer and Binder, 

Springfield, Illinois. 



JUSTICES OF THE SUPREME COURT 

DUEING THE TIME OF THESE EEPOETS. 



T. LYLE DICKEY, Chief Justice. 
PINKNEY H. WALKEB, 
ALFKED M. CEAIG, 
JOHN M. SCOTT, 
BENJAMIN E. SHELDON, 
JOHN SCHOLFIELD, 
JOHN H. MULKEY, 



ATTORNEY GENERAL, 

JAMES McCAETNEY. 



REPORTER, 

NOEMAN L. FREEMAN. 



CLERK IN THE SOUTHERN GRAND DIVISION, 

J. 0. CHANCE, Mt. Vernon. 

CLERK IN THE CENTRAL GRAND DIVISION, 

ETHAN A. SNIYELY, Springfield. 

CLERK IN THE NORTHERN GRAND DIVISION, 

E. F. DUTTON, Ottawa. 



JUDGES OF THE APPELLATE COURTS 

DURING THE TIME OF THESE REPORTS.* 



Foe the Fiest Disteict — Chicago: 

joseph m. bailey, 
william k. McAllister, 
isaac g. wilson. 

Foe the Second Disteict— Ottawa: 

NATHANIEL J. PILLSBURY, 
GEORGE W. PLEASANTS, 
LYMAN LACEY. 

Foe the Thied Disteict— Speingfield: 

OLIVER L. DAVIS, 
CHAUNCEY L. HIGBEE, 
DAVID McCULLOCH. 

Foe the Foueth Disteict — Mt. Veenon: 
DAVID J. BAKER, 
GEORGE W. WALL, 
THOMAS S. CASEY. 



. *In cases of appeals from or writs of error to any of the Appellate Courts, 
which may be reported in this volume, where the names of the judges of 
those courts are not given in the report, it will be understood the judges 
constituting the court in that particular District named were as above stated. 



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TABUS of oases 



REPORTED IN THIS VOLUME. 



A PAGE. 


PAGE. 


Adams, Admx. v. Gordon 


598 


Chicago, Danville and Vincennes 




Allen ads. Seeders 


468 


R. R. Co. et al. ads. King et al. 


376 


Anderson et al. v. Strauss 


485 


Chicago, City of ads. Hunt 


147 








618 
523 


B 




Clapp et al. Admrs. v. Emery, . . 


Baird et al. v. Jackson 


78 


Coalfield Company, use, etc. v. 




Bank of Montreal v. Page 


109 


Peck 


139 


Barnes et al. ads. Town of Spar- 




Cobb ads. Seaver 


200 


land 


595 


Cole v. Marple et al 


58 


Bate et al. ads. Olin 


53 


Collins ads. Marvin 


510 


Bauerlee ads. Kedlich 


134 




584 




Beale et al. ads. Board of Trus- 




Commercial National Bank v. 




tees Town. 24, etc 


248 


Proctor et al 


558 


Belleville Nail Co. v. The People 




Cubberly v. Scott et al 


38 


ex rel 


399 






Bennett et al. v. Stout et. al. . . . 


47 


D 




Binkert et al. v. Wabash By. Co. 


205 


Davenport, Executor ads. King 




Binkert, The People ex rel. ads. 




et al 


305 


Webster 


343 


Dennison, The People ex rel. 




Bitter v. Saathoff 


266 


ads. Chicago and Alton E. R. 




Board of Trustees Town. 24, etc. 




Co „ 


350 


v. Beale et al 


248 


Derby et al. ads. Elder 


228 


Bowen v. Galloway, Keceiver. . . 


41 


De Young ads. Wallace et al 


638 


Brittenham ads. Smith 


188 
235 


Dickson et al. v. Hitt. . . 


300 


Brown et al. ads. Magill et al. . . 


Dodd v. Dotv 


393 


Browning et al. ads. Carpenter.. 


282 


Doty ads. Dodd. . 


393 


Bryan v. Howland 


625 


Dunlap et al. v. McGhee et al.. 


287 


Bullock et al. ads. Silverman . . . 


11 


E 




C 
Campbell et al. ads. Hosmer 


572 


East St. Louis, City of v. East 




Carbine v. Fox 


146 


St. Louis Gas Light aad Coke 
Co 




Carpenter v. Browning et al. . 


282 
332 


415 


Cassell ads. Fitzsimmons 


East St. Louis Gas Light and 




Champaign, City of v. Harmon. . 


491 


Coke Co. ads. City of East St. 




Chicago and Alton B. B. Co. v. 




Louis „ 


415 


The People ex rel 


350 


Elder v. Derby et al 


228 



VIII 



TABLE OF CASES REPORTED. 



PAGE. 
Elliott ads. Wabash Railway Co. 481 
Emery ads. Clapp et al. Acinars. . 523 

F 

Fairbury, Village of v. Eogers. . . 554 

Fast et al. v. McPherson 496 

Field et al. v. Oppenstein et al. . 68 

Fitzpatrick v. The People. . 269, 259 

Fitzsimmons v. Cassell 332 

Flagg v. Geltmacher 293 

Fox ads. Carbine 146 

G 

Galloway, Eeceiver ads. Bowen. . 41 

Geltmacher ads. Flagg 293 

Goeppner et al. v. Leitzelmann, 

Admx 409 

Goltra v. Green et al 317 

Gordon ads. Adams, Admx 598 

Gorman v. Gorman et al 361 

Green et al. ads. Goltra 317 

Gross, The People ex rel. ads. 

Stookey, Treasurer 537 

H 

Hall ads. Water Commissioners . 371 
Hamilton et al. v. Hamilton et al. 254 
Harmon ads. City of Champaign 491 

Harris ads. Palmer et al 507 

Hebblethwaite et al. v. Hepworth 126 
Hepworth ads. Hebblethwaite 

et al 126 

Higgins v. The People 519 

Hitt ads. Dickson et al 300 

Hosmer v. Campbell et al 572 

Howland ads. Bryan 625 

Hunt v. City of Chicago 147 

J 

Jackson ads. Baird et al 78 

Jacobson ads. Piper et al 389 

Jenkins, Assignee v. Pierce et al. 646 
Johnson ads. City of Chicago. . . 618 
Johnson et al. v. Johnson et al. . 564 
Johnson, The People ex rel. ads. 

Leindecker 21 

v. Peacock 172 

ads. Thatcher 632 



K PAGE. 

King et al. v. Chicago, Danville 

and Vincennes R. R. Co. et al. 376 
King et al. v. Davenport, Exr. . . 305 

Kirby, Exr. v. Wilson et al 240 

Knight et al. ads. Neimeyer 222 

iu 

Leindecker v. The People ex rel. 21 
Leitzelmann, Admx. ads. Goepp- 
ner et al 409 

Lemont, Town of et al. v. Singer 

and Talcott Stone Co. et al. . . 94 

Lennon ads. Walsh 27 

Litchtenstadt v. Rose 643 

M 

Maghee v. Robinson et al 458 

Magill et al. v. Brown et al 235 

Marple et al. ads. Cole 58 

Marvin v. Collins 510 

Masonic Benevolent Association 

ads. The People ex rel 635 

Massachusetts Mut. Life Ins. Co. 

v. Robinson 324 

Matthews et al. ads. Tomlinson 

et al 178 

McGhee et al ads. Dunlap et al. 287 

McPherson ads. Fast et al 496 

Moore v. Stanwood 605 

Needham v. The People 275 , 

Needles et al. ads. Town of Vir- 

den 366 

Neimeyer v. Knight et al 222 

O 

O'Connor et al. ads. Schramm 

et al 539 

Olin v. Bate et al 53 

Oppenstein et al. ads. Field et al. 68 

P 

Page ads. Bank of Montreal 109 

Palmer et al. v. Harris 507 

Peacock ads. The People ex rel. 172 

Peck ads. Coalfield Co., use, etc. 139 



TABLE OF CASES REPORTED. 



IX 



PAGE. 

People ads. Collins 584 

ads. Fitzpatriok. . . . 259, 269 

ads. Higgins 519 

ads. Presser 406 

ads. Needham 275 

ads. Eogers 581 

ads. Smith 407 

ads. South 261 

ads. Swan 610 

v. Sisson 335 

exrel. ads. Belleville Nail 

Co 399 

ex. rel. ads. Chicago and 

Alton B. B. Co 350 

ex rel. ads. Lein decker. . 21 

ex rel. ads. Thatcher 632 

ex rel. ads. Webster 343 

ex rel v. Masonic Benevo- 
lent Association 635 

ex rel. v. Peacock 172 

ex rel. v. Stookey, Treas. 537 

Pierce et al. ads. Jenkins, As- 
signee 646 

Piper et al. v. Jacobson 389 

Presser v. The People 406 

Proctor et al. ads. Commercial 

National Bank 558 

R 

Eedlich v. Bauerlee 134 

Eichmond v. Eoberts 472 

Eoberts ads. Eichmond 472 

Eobinson et al. ads. Maghee. . . . 458 

ads. Massachusetts Mut. 

Life Ins. Co 324 

Eogers v. The People 581 

ads. Village of Fairbury. 554 

Eose ads. Litchtenstadt 643 

S 

Saathoff ads. Bitter 266 

Schramm et al. v. O'Connor et al. 539 

Scott et al. ads. Cubberly 38 

Seaver v. Cobb 200 

Seeders v. Allen 468 



PAGE. 

Silverman v. Bullock et al 11 

Singer and Talcott Stone Co. etal. 

ads. Town of Lemont et al — 94 

Sisson ads. The People 335 

Smith v. Brittenham 188 

v. The People 407 

South v. The People 261 

Sparland, Town of v. Barnes et al. 595 

Stanwood ads. Moore 605 

Stettauer et al. v. White 72 

Stookey, Treas. ads. The People 

ex rel 537 

Stout et al. ads. Bennett ■ et al. . 47 

Strauss ads. Anderson et al 485 

Swan v. The People 610 

T 

Thatcher v. The People ex rel. * 632 

Thornton et al. ads. Wenner 156 

Tomlinson et al. v. Matthews 
etal 178 

Veeder et al. ads. Zimpleman. . . 613 
Virden, Town of v. Needles et al. 366 

W 

Wabash Eailway Co. ads. Binkert 

etal 205 

Wabash Eailway Co. v. Elliott. . 481 

Wallace et al. v. De Young 638 

Walsh v. Lennon 27 

Water Commissioners v. Hall. . . 371 
Weber, The People ex rel. ads. 

Belleville Nail Co 399 

Webster v. The People ex rel. . . 343 

Wenner v. Thornton et al 156 

White ads. Stettauer et al 72 

Whitney et al. The People ex rel. 

v. Masonic Benevolent Asso . . 635 
Wilson et al. ads. Kirby, Exr. . . 240 
Wormley v. Wormley 544 

Z 

Zimpleman v. Veeder et al 613 



CASES 

ARGUED AND DETERMINED 

IN THE 

SUPREME COURT OF ILLINOIS. 



Lazarus Silverman 

v. 

John Row Bullock et al. 

Filed at Ottawa September 25, 1880 — Rehearing denied March Term, 1881 

1. Power of attorney — sale on credit under. Where a power of attorney for 
the sale of land is general, containing no limitation upon the attorney, and 
no directions as to whether the sale shall be for cash or on time, it will be in 
the discretion of the attorney to make sales according to the usual custom in 
such matters, and a sale on credit, made in good faith, by such attorney will 
be upheld. 

2. Notice — to principal, of his attorney's act, by recording. Where an agent 
under a power of attorney sells and conveys lots of his principal on time, 
taking mortgages and trust deeds on the same to secure the purchase money 
which he places upon record, the principal will be held to have notice of what 
the record of the mortgages and trust deeds discloses, and he can not be heard 
to deny notice of the fact that his agent has sold on credit and taken notes 
payable to himself. 

3. Assignment — of notes — cuts out defence. Where an agent under a power 
of attorney fraudulently sells and conveys lots of his principal to a third 
person, who gives his notes for the price, payable to the agent, secured by 
mortgage on the property sold, and the payee transfers the notes to an inno- 
cent purchaser, for value, the original owner of the land can not have the 
sale of the lots set aside as against the rights of the assignee of the notes, 
and the latter will have the right to enforce the security for their payment. 

4. Same — of mortgage — subject to what equities. The assignee of a mort- 
gage takes it subject only to the equities existing in favor of the mort- 
gagor against the assignor, and not subject to latent equities in favor of 



12 Silverman v. Bullock et al. [March 

Brief for the Appellant, 

third persons, in the subject involved in the assignment, of which he had no 
notice. 

5. Although a sale of property may he fraudulent, and subject to be set 
aside by the original owner defrauded, yet where the purchaser gives his 
notes for the purchase money, secured by mortgage on the property, which is 
recorded, he will not be allowed to allege that his purchase was a mere 
accommodation for the agent selling, and hence not binding on him, as against 
an innocent assignee of the notes for value. 

Appeal from the Appellate Court for the First District; — 
heard in that court on appeal from the Circuit Court of 
Cook county; the Hon. W. W. Faewell, Judge, pre- 
siding. 

Messrs. L. & P. Trumbull, for the appellant: 

Silverman, as the assignee of the notes, for value, before 
maturity, and without actual notice of any fraud, or of any 
claim to the notes by any other than his assignor, has a good 
title against the world. Comstoch v. Hannah, 76 111. 531; 
Goodman v. Simonds, 20 How. 343; Goodman v. Harvey, 4 
Aid. & Ell. 870; Magee v. Badger et al 34 K Y. 247; Welch 
v. Sage, 47 id. 143; Seybel v. National Currency Bank, 54 id. 
288; Chapman v. Rose, 56 id. 137; 1 Pars, on Notes, etc., 
258; Murray v. Gardner, 2 Wall. 110. 

An assignee of notes is not bound or affected by any re- 
citals in the mortgage or deeds of trust given to secure them. 
Minel v. Read, 26 Ala. 726. 

Parties negotiating for negotiable instruments are not 
bound to take notice of public records. 1 Daniel on Nego. 
Instru. 654 sec. 800. 

"The note and mortgage are inseparable; the former, as 
essential, the latter, as an incident. An assignment of the 
note carries the mortgage with it." Carpenter v. Longan, 16 
Wall. 274. 

If a mortgage is given to secure a note, and the note is 
transferred, before maturity, to a bona fide assignee, he takes 
the benefit of the mortgage as he does the note, and clear of 
any equities between the original parties. 1 Daniel on Nego. 



1881.] Silverman v. Bullock et al. 13 

Brief for the Appellees. 

■ 4 

Inst. 685, sec. 834; Hilliard on Mort. sec. 526, 49; Taylor 
v. Page, 6 Allen, 86; Carpenter v. Longan, 16 Wall. 273. 

The assignee of notes takes the mortgage subject to all the 
equities of the mortgagor, but not to the latent equities of a 
third person. Mott v. Clark, 9 Pa. St. 399 ; Petillion v. Noble, 
73 111. 567; Bryant v. Vix, 83 id. 11 ; Walker v> Dement, 42 
id. 278. 

It is a familiar principle, that " when a loss is to be suffered 
through the misconduct of an agent it should be borne by 
those who put it in his power to do the wrong rather than by 
a stranger. " County of Macon v. Shores, 7 Otto, 279. 

Mr. W. S. Searls, for the appellees: 

The power of attorney was recorded March 5, 1873; from 
that date Silverman is chargeable with notice that Bullock 
was the owner of the several lots embraced in the trust deeds, 
now held by him, he resorting, as he does, to the land for 
payment. In support of this position, see Chicago, Bock 
Island & Pacific R. R. Co. v. Kennedy et al. 70 111. 350; 
McConnel v. Reed, 4 Scam. 117; Merrick v. Wallace, 19 111. 
486 ; Morrison v. Kelly, 22 id. 610 ; Morris et al. v. Hogle et 
al. 37 id. 150; Rupert et al. v. Mark, 15 id. 540; Shannon et 
al. v. Hall et al. 72 id. 354; Hall v. Shannon et al. 85 id. 473. 

Silverman being notified of the power of attorney, was 
bound to examine its scope, and look to the authority of 
Eunyan under it. Story on Agency, (7th ed.) sec. 72 ; Pea- 
body v. Heard, 46 111. 242 ; Cooley v. Willard et al. 34 id. 
68; Reynolds v. Ferree et al. 86 id. 570; Commentaries on 
Agency and Agents, Wharton, sec. 227. 

Silverman is bound by such construction of the powers 
contained in the instrument, as the law has applied to them; 
that construction is a strict one, by which the authority of 
the agent is never extended beyond that which is given in 
terms, or is absolutely necessary for carrying the authority so 
given into effect. Bissell v. Terry et al. 69 111. 184; Chase 



14 Silverman v. Bullock et al. [March 

Opinion of the Court. 

v. Dana, 44 id. 262 ; Thornton v.Boyden, 31 id. 200; Story's 
Agency, sees. 68, 69, 126. 

If a special agent exceeds the special and limited authority 
conferred on him, the principal is not bound by his acts 
unless he has held the agent out as possessing a more enlarged 
authority. Hartford Fire Ins. Co. v. Wilcox, 57 111. 180; 
Story's Agency, sec. 126. 

It is not supposable that Silverman purchased the notes 
and trust deeds without inquiring into the standing of the 
maker, or that he neglected to examine the records as to the 
title. That position, it appears to me, can not be successfully 
assumed, and at the same time give Silverman the credit of 
using the care of an ordinary business man in the transaction ; 
that care he was bound to use. Russell v. HadducJc, 3 Gilman, 
233; Sturges 9 Sons v. Met. Nat. Bank of N. Y. 49 111. 220; 
McConnel v. Hodson et al. 2 Gilman, 640. 

When Silverman received these several trust deeds, he took 
them subject to all of appellees' rights in the real estate 
described in each trust deed, and when he seeks, as he now 
does, to enforce payment of the notes by sale of that real 
estate, appellees may insist upon all their legal and equit- 
able rights in the property, as a defence to his proceeding, 
and a court of equity will look into all the circumstances, 
and will not enforce the trust deeds in the hands of the 
assignee, if they ought not to be enforced in the hands of the 
assignor. Olds v. Cummin g s et al. 31 111. 188; Walker v. 
Dement, 42 id. 272; Bryant et al. v. Vix, 83 id. 11; Fortier 
v. Darst, 31 id. 212. 

Mr. Justice Scott delivered the opinion of the Court : 

The facts in this case, susceptible of direct proof, are so 
well established as to admit of no disagreement. The subject 
of controversy is that with which the law charges the parties 
interested with notice. 

Prior to November, 1872, complainant, with defendant 
Kunyan, and Harlow P. Smith, were the owners of a tract 



1881.] Silverman v. Bullock et aL 15 



Opinion of the Court. 



of land adjoining the city of Chicago. Subsequently the 
owners platted it into lots and blocks,- designating it as 
"Central Park Second Addition to Chicago." A division of 
the lots between the owners was made, and it is as to a por- 
tion of the lots set apart to complainant Bullock, this litiga- 
tion concerns. 

On the 7th day of November, 1872, complainant and his 
wife gave defendant Runyan a power of attorney to sell and 
convey the lots that had been set apart to complainant in the 
division. The power was general. No specific directions 
were given as to the terms upon which sales should be made. 
Under the power given, Runyan made numerous sales of lots 
between March 4, 1873, and May 31, 1875, and con- 
veyed the property by deed, as the attorney in fact of com- 
plainant and his wife. Some of the sales appear to have been 
partly for cash and partly on time, and in the latter case the 
purchase money was secured, either by mortgage or deed of 
trust on the property. Among others, sales were made to 
defendants Story, Flanagan and Douglas, each purchaser 
securing a portion or all of the purchase money of the lots 
conveyed to him, by mortgage or trust deed. The notes 
taken for the lots sold were either made payable to Runyan 
or to persons selected by him, and who afterwards assigned 
the same to him. A portion of the notes given by Flanagan, 
Story and Douglas, respectively, were afterwards sold and 
assigned to defendant Silverman, and are the notes involved 
in this controversy. All of the notes assigned to Silverman 
were purchased by him in good faith, for a valuable consid- 
eration, and before maturity, except one of Flanagan's, and 
as to that note, he inquired of the maker, and was told it was 
all right and would be paid. 

In the summer of 1876 Runyan failed and left the State. 
On learning the fact of Runyan's embarrassment, complain- 
ant undertook to discover the condition of his property, and 
on obtaining the requisite information, the original bill in 
this case was filed, in which was set forth the various sales of 



16 Silverman v. Bullock et al. [March 

Opinion of the Court. 

lots made by Runyan under the power of attorney given to 
him, and charging that the same were made without the 
knowledge or consent of complainant; that they were fraud- 
ulent and void; that Runyan had no authority to make sales 
of lots on a credit and to take notes and trust deeds running 
to himself or to a third party for the purchase money, and 
charges the several purchasers of lots, and of notes given for 
the same, with notice of his ownership and interest therein. 
Both the purchasers and the parties holding notes were made 
defendants, and a decree was asked that all sales be set aside 
as fraudulent, and in case any such sales should be found to 
be valid, and any of the purchase money agreed to be paid 
remained unpaid, that the parties owing it should be decreed 
to pay it to complainant. The bill contains other matters in 
relation to moneys due from Runyan to complainant, but as 
the present litigants are not interested in that branch of the 
case, it will not be necessary to state them. 

After making his answer to the original bill, Silverman 
filed a cross-bill, by which he seeks a foreclosure of the mort- 
gages or trust deeds by which the notes assigned to him by 
Runyan are secured. On the hearing the circuit court 
decreed relief, substantially as asked in the original bill, 
affirming some of the sales, but giving to complainant the 
benefit of all the purchase money, and dismissed Silver- 
man's cross-bill. That decree was affirmed in the Appellate 
Court, and now Silverman brings the case to this court on 
his appeal. 

The case has been most elaborately argued, but it seems to 
us the controlling questions present no great difficulty in 
their solution. The sales of lots, both to Story and Flana- 
gan, were made in good faith,- and were so understood by 
them, and there is, and can be no reason why the purchasers 
are not entitled to the benefit of their contracts. As we 
have seen, the power of attorney from complainant and his 
wife to Runyan, was as broad and comprehensive as it could 
well be made. It was to sell aud convey the property, and 



1881.] Silverman v. Bullock et al. 17 

Opinion of the Court. 

to do all things necessary to be done, as fully as the owner 
could do were he personally present. No limitation was 
placed on the power of the attorney acting on behalf of the 
owner, and no directions were given as to how the sales 
should be made, whether for cash or on time. The power 
being general it would seem to be in the discretion of the 
attorney to make sales of the property according to the usual 
custom in such matters, whatever that might be. 

It may be true, as alleged, that complainant had no actual 
knowledge that his attorney in fact was making sales of 
his property on time, and taking notes in his own name for 
the purchase money. He seems to have trusted the matter 
of making sales of his property to his agent and attorney, 
without giving it the slightest personal attention. But as 
the mortgages and trust deeds, containing definite descrip- 
tions of the property sold, and the notes taken to secure the 
purchase money, were placed on record by the attorney in 
fact of complainant, such act may be justly regarded as the 
act of complainant, and it is not, therefore, unreasonable to 
hold that he had notice of what the record made by his own 
agent disclosed. The conveyance to Flanagan was made on 
the 18th day of March, 1873, and to Story on the 13th day 
of June, 1873, and, although the deeds were on record, yet 
complainant made no objections to the sales to either of them 
until 1876, after his agent and attorney had misappropriated 
the funds and left the State. There could then be no equitable 
ground on which the sales could be set aside. Clearly the pur- 
chasers are entitled to the benefit of their contracts The 
decree declaring these sales valid was warranted by the facts. 

As respects the sales of lots to Douglas, they were, no 
doubt, colorable and for the accommodation of Runyan. 
Were the rights of no third parties involved, all the sales to 
him might be set aside at the suit of complainant as a fraud 
upon him. But as to third parties, who may have acquired, 
in good faith, an interest in his notes, or the property itself, 
Douglas will not be permitted to allege his purchases were a 
2—98 III. 



18 Silverman v. Bullock et al. [March 



Opinion of the Court. 



mere accommodation to Runyan, and, hence, not binding on 
him. That would enable him to perpetrate a fraud on third 
persons who could not know the sales to him were not in good 
faith. On the record it appeared to all the world to be abso- 
lute sales, and, as to parties dealing with the land or the 
securities made by him, he is concluded by what the record 
he has himself made shows. The land in his hands, as well 
as his personal responsibility, is bound for the payment of 
his outstanding; notes in the hands of an innocent assignee 
for value. His notes, under our statute, were negotiable, 
and, as against him, carried with them the mortgage pledge 
for their payment. A court of chancery will not listen to 
him when he asserts a transaction, fair on the record, was 
secretly colorable for accommodation of his grantor. His 
undertaking made it possible for his grantor to sell his notes 
to innocent parties, and to such persons he will be as abso- 
lutely bound for their payment as if the sales to him had 
been made in good faith. As to all the notes themselves, 
involved in this litigation, there can be no question Silver- 
man is entitled to collect them of the makers, not only those 
bought before maturity, but the one over due when he took 
it, as he first inquired of the maker concerning it, and was 
assured it would be paid. 

The only seeming difficulty in the case is, whether Silver- 
man is entitled to the security afforded by the mortgages or 
trust deeds by which the notes in his hands are secured, and 
to have the same foreclosed for his benefit. As against the 
makers of the notes there can be no question made. Both 
Story and Flanagan assert the validity of their contracts, 
and are ready to pay, to whomsoever is entitled to receive it, 
the balance of the purchase money. As we have seen, 
Douglas, as against an innocent assignee of his notes before 
maturity, for value, can make no defence, either as to the pay- 
ment of his notes or as to the security pledged for their pay- 
ment. Nothing is urged against these propositions, but the 
argument is made in favor of the equitable rights of com- 



1881.] Silverman v. Bullock et aL 19 

Opinion of the Court. 

plainant. It is said that when Silverman took to himself an 
assignment of the several mortgages or trust deeds, he took 
them subject to all the rights of complainant in the real 
estate embraced in them. In support of this proposition the 
principle declared in Olds v. Cummings, 31 111. 188, and other 
cases in this court, is invoked, but, on a close analysis, it will 
be seen the cases cited do not sustain the position assumed 
by counsel. The doctrine is well understood, that an 
assignee of a mortgage takes it subject to the same equi- 
ties it was subject to in the hands of the assignor. It is 
because a mortgage or deed of trust is not assignable, 
either at common law or under our statute, as is commer- 
cial paper. By the common law, choses in action are not 
assignable so as to vest the absolute title in the assignee; 
nor has our statute enlarged the common law in this re- 
spect. The principle of Olds v. Cummwgs is, that the 
assignee of a mortgage takes it subject to all equities ex- 
isting in favor of the mortgagor. The reason assigned for 
the rule is, that it is the duty of a purchaser of a mort- 
gage to inquire of the mortgagor if there be any reason 
why it should not be paid ; but it was said in that case, 
he should not be required to inquire of the whole world 
to see if some one has not a latent equity which might be 
interfered with by the purchase of the mortgage, as, for 
instance, a cestui que trust. The cases cited by the court 
in support of the decision in Olds v. Cummings, are Mur- 
ray v. Lylburn, 2 Johns. Ch. 44, Mott v. Clark, 9 Pa. St. 
399, Pryor v. Wood, 31 id. 142, and Westfall v. Jones, 20 
Barb. 10, and it will be found, on examination, that all 
of them, except Westfall v. Jones, hold, as Chancellor 
Kent expressed it, that the assignee of a chose in action 
takes it subject to "the equities residing in the original 
obligor or debtor, and not an equity residing in some 
third person against the assignor." The case of Westfall 
v. Jones is silent on this question, and was cited, no 
doubt, for another purpose, viz : to show the assignee of a 



20 Silverman v. Bullock et at. [March 

Opinion of the Court. 

chose in action takes it subject to all the equities existing 
against it in the hands of the assignor, and that the term 
equities, as used in that connection, means defences. 

Although this is the first case that has arisen in this State 
for the application of the doctrine, we must regard it as set- 
tled by the cases cited, that the assignee of a mortgage takes 
it subject only to equities existing in favor of the mortgagor, 
as against the assignor, and not subject to latent equities in 
favor of third persons in the subject involved in the assign- 
ment, of which he had no notice. The rule in Olds v. Cum- 
mings is a reasonable one, and can readily be observed. 
Persons dealing in such securities can, without difficulty, 
inquire of the makers if any defences exist against them, but 
more than that it is not practicable to do. Of course, it 
would not be possible to discover, even by the utmost dili- 
gence, all persons that might have equitable rights in the 
subject matter of the assignment, and the adoption of a rule 
that would let in latent equities to prevail against the 
assignee, would be to ensnare dealers in such securities. 

Applying this rule to the case in hand, we find the mort- 
gagors have no equities or defences that can prevail against 
the assignee of the several mortgages or trust deeds made by 
them, and as the equities of third persons in the property 
covered by the mortgages must be postponed to the rights 
of the assignee, it follows that whatever equities complainant 
may have in the property embraced in these mortgages or 
trust deeds are inferior to and must be postponed to the 
superior equities of the assignee, Silverman. 

The judgment of the Appellate Court will be reversed, and 
the cause remanded with directions to that court to reverse the 
decree of the circuit court and remand the cause for further 
proceedings not inconsistent with this opinion. 

Judgment reversed, 

Mr. Justice Sheldon dissenting. 



1881.] Leindecker v. The People ex reL 21 

Syllabus. 



Catharina Leindecker 
v. 
The People ex reL Wm. T. Johnson. 

Filed at Ottawa November 17, 1880 — Rehearing denied March Term, 1881, 

1. Judgment upon special assessment — at what term of court to be applied 
for — constitutional law. Section 4 of article 9, of the present constitution 
provides that lands shall not be sold for taxes or assessments except upon a 
judgment obtained in a court of record, and that but one general officer of a 
county can be authorized to make the sale. Thus far the constitution is to be 
regarded as a limitation upon the power of the legislature, but no further; — 
as to the time when a judgment may be rendered for taxes or assessments 
that matter is left by the constitution for the legislature to determine. 

2. Same — as to the provision of the statute on the subject. There is no doubt 
that, under the general revenue law of the State, application for judgment 
against delinquent lands for State and county taxes is required to be made 
at the May term of the county court; but in respect to special assess- 
ments levied by a city or town organized under the general incorporation 
law, that law confers upon the city council the power to appoint the term of 
the court at which application for judgment shall be made, which may be a 
term other than that at which application is required to be made for judg- 
ment for State and county taxes. 

3. Nor is the rule as to the term of court at which application for judg- 
ment upon such assessments may be made, affected by anything contained in 
section 1 of the act of May 2, 1873, (now sec. 299 Ch. 120, entitled "Reve- 
nue") on the subject of the time -of advertising the sale of lands for delin- 
quent taxes. These assessments are not embraced in that section, not being 
required to be included in the advertisement and notice therein provided for. 

4. Same — as to the time of filing delinquent list. The statute requiring the 
delinquent list to be filed five days before the term of court at which appli- 
cation is to be made for judgment upon such assessments, is directory merely, 
and a literal compliance with that requirement is not essential to the juris- 
diction of the court or the validity of the judgment. 

Appeal from the Appellate Court for the First District; 
— heard in that court on an appeal from the County Court of 
Cook county ; the Hon. Mason B. Loomis, Judge, presiding. 



Mr. John P. Wilson, for the appellant. 



22 Leindecker v. The People ex ret. [March 

Opinion of the Court. 

Mr. Francis Adams, for the appellees. 

Mr. Justice Ceaig delivered the opinion of the Court: 

The first, and indeed the main question presented by the 
record, is whether a county collector is authorized by the 
statute to make application for judgment for a special assess- 
ment levied by a city or town organized under the general 
law for the incorporation of cities and villages, at a term 
of the county court other or different from the time applica- 
tion is made for judgment for State and county taxes, or 
does the statute require the application to be made at the same 
term judgment is obtained for State and county taxes. On 
behalf of appellant, it is contended that the county court has 
no jurisdiction to render a judgment for a special assessment 
at a different term of court from that at which application 
for a judgment is made for the State and county taxes; and 
in support of the proposition section 4, article 9, of the con- 
stitution is relied upon, which is as follows: 

"The General Assembly shall provide, in all cases where 
it may be necessary to sell real estate for the non-payment 
of taxes or special assessments for State, county, municipal 
or other purposes, that a return of such unpaid taxes or 
assessments shall be made to some general officer of the 
county having authority to receive State and county taxes; 
and there shall be no sale of said property for any of said 
taxes or assessments but by said officer, upon the order or 
judgment of some court of record. 77 

Prior to the adoption of the present constitution, many of 
the cities and towns had tax collectors of their own, who, 
under the charters of the cities and towns where they were 
elected, were authorized to apply for and obtain judgment 
against delinquent lands, and to sell the same for the non- 
payment of taxes and assessments levied by the city or town. 
The purpose of the section of the constitution cited was to 
obviate this supposed evil, and to prevent a sale of lands by 
these various city officers, and to require a return to be made 



1881.] Leindecker v. The People ex rel. 23 

Opinion of the Court. 

to some general officer of the county, who should in all cases, 
■when it became necessary, make the sale of delinquent lands 
for taxes or assessments. Under this provision of the consti- 
tution, no land can be sold for taxes or assessments unless a 
judgment has first been obtained in a court of record, and 
but one general officer of the county can be authorized by 
the legislature to make the sale. Thus far the constitutional 
provision may be regarded as a limitation upon the power of 
the legislature, but no further. As to the time when a judg- 
ment may be rendered for taxes or assessments, that matter 
is left, by the constitution, for the legislature to determine. 
The question then arises, what provision the legislature has 
made on the subject. 

Section 185 of the Revenue law, Rev. Stat. 1874, p. 8S8 f de- 
clares: "All applications for judgment and order of sale 
for taxes and special assessments on delinquent lands and lots 
shall be made at the May term of the county court. " This 
provision of the statute is broad enough to include the appli- 
cation in question, and if there was no other statute on the 
subject, it is apparent that the judgment rendered in this case 
could not be sustained, as it was not rendered at the May 
term, as required by the act. At the time the constitution of 
1870 was adopted, there was no uniform system of collecting 
taxes and special assessments in cities organized under special 
charters, but each city in the State proceeded under the pro- 
visions of its charter, whatever they might be, and the sec- 
tion of the statute, in so far as it relates to special assess- 
ments, was doubtless passed for the purpose of establishing a 
uniform system to govern and control all cities acting under 
special charters. But we do not believe section 185 was in- 
tended to apply to towns or cities organized under the general 
Incorporation act, because, if such had been its object, a 
different provision would not have been made for such cities 
and towns, as is the case in chapter 24, entitled " Cities, 
Villages and Towns." Under this chapter of the statute, 
when a city or town organized under it seeks to collect a 



24 Leindecker v. The People ex rel. [March 

Opinion of the Court. 

special assessment, the steps to be taken are clearly marked 
out. 

Section 152 of the last named act requires the collector to 
call on all persons, as far as practicable, who reside in the 
corporation, whose names appear on the assessment roll, and 
request payment. Sec. 153 provides that it shall be the duty 
of the collector of special assessments, within such time as 
the city council or board of trustees may, by ordinance, pro- 
vide, to make report in writing to the general officer of the 
county authorized or to be designated by the general revenue 
law of this State, to apply for judgment and sell lands for 
taxes due the county and State of all the lands, town lots 
and real property on which he shall have been unable to col- 
lect special assessments, and the amount due and unpaid 
thereon, together with his wrrant, etc. This is followed 
by section 154, which declares that when said general officer 
shall receive the report provided for in the preceding section, 
he shall at once proceed to obtain judgment against said lots 
and lands for said special assessments remaining due and 
unpaid, in the same manner as is or may be by law provided for 
obtaining judgment against lands for taxes due and unpaid 
the county and State. Under this section it is the duty of 
the county collector to proceed at once to obtain judgment 
when he receives the report from the city or local collector, 
and, under section 153, the city collector is required to make 
his report at such time as the city council or board of trustees 
may, by ordinance, provide. It would, therefore, be impossi- 
ble for the county collector to apply for judgment for a 
special assessment at the May term of the court, the time 
required by the general revenue law to apply for judgment 
for State and county taxes, unless the city council or board 
of trustees should, by ordinance, require the city collector to 
make report to him in time for such an application, which, 
under the law, they are not required to do, but they are 
empowered with a discretion to determine the time when the 
report shall be made. It would seem from this that it was 



1881.] Leindecker 0. The People ex rel. 25 

Opinion of the Court. 

never contemplated that the application for judgment for a 
special assessment levied by a city or town organized under 
the general incorporation act, should be .made at the same 
time that application for judgment is made under the pro- 
vision of the general revenue law. Again, if the collector 
was to be governed by the general revenue law in making an 
application for judgment for a special assessment, why was 
section 158, of chapter 24 enacted, which declares: The 
general revenue laws of this State, in reference to proceed- 
ings to recover judgments for delinquent taxes, the sale of 
property thereon, the execution of certificates of sale and 
deeds thereon, the force and effect of such sales and deeds 
and all other laws in relation to the enforcement and col- 
lection of taxes and redemption from tax sales, except as 
herein otherwise provided, shall be applicable to proceedings 
to collect such special assessments? 

The words, except as herein otherwise provided, were, 
doubtless, inserted for the reason, in this chapter a different 
time had been provided wherein application might be made 
for judgment for a special assessment assessed by a city acting 
under the general incorporation act, than was required by 
the general revenue law. The Revenue act and the act in 
relation to the incorporation of cities and villages were 
passed at the same session of the legislature, and the fact 
that section 158 supra was adopted in connection with the 
other sections of chapter 24, shows clearly that applications 
for judgment on special assessments were not, as to the time 
of the application, to be controlled or governed by the general 
revenue law. Under the chapter in regard to the incorpora- 
tion of cities, villages and towns, express provision is made 
by section 112 Rev. Stat. 1874, page 231, that city taxes shall 
be collected and enforced in the same manner and by the 
same officers as State and county taxes, and it is only reason- 
able to believe that, had the legislature intended to adopt the 
same rule as to special assessments, it would have so said. 



26 Leindecker v. The People ex rel. [Mar 



till 



Opinion of the Court. 



We have been referred to the first section of an act 
approved May 2d, 1873, which is now section 299, of chap- 
ter 120, entitled "Revenue," Rev. Stat. 1874, as having a bear- 
ing on the question. There is no doubt in regard to the fact 
that all applications embraced within the terms of that section, 
are required to be made at the same time that application for 
judgment for State and county taxes is made, because the 
advertisement is required to be made at the same time, and 
to form part of the advertisement for State and county taxes. 
But the assessment under consideration is not required to 
be included in the annual advertisement and notice, as was 
held in The People v. Sherman, 83 111. 168, and McCauley v. 
The People, 87 id. 124, and, hence, it does not fall within the 
terms of the section, and can not be controlled by it. While 
we are satisfied it Avould be far better if all cities and incor- 
porated towns, whether incorporated under the general law or 
under a special charter, were required in the collection of 
special assessments to conform to the provisions of chapter 
120, entitled "Revenue," and that, in all cases, application for 
judgment should be required to be made at the same time 
application for judgment is made for State and county taxes, — 
yet, it is apparent that the legislature, for some reason, saw 
proper to provide otherwise. 

It is next urged that the judgment is erroneous because 

the statute requires the delinquent list to be filed five days 

before the commencement of the term of court, and it was 

not filed until the first day of the term. In Jackson v. Cum- 

mings, 15 111. 449, a similar statute was held to be directory 

merely, and that a literal compliance was not essential to the 

jurisdiction of the court. That decision is conclusive of the 

question made. The judgment of the county court will be 

affirmed. 

Judgment affirmed. 



1881.] Walsh v. Lennon. v 27 

Syllabus. Brief for the Appellant. 



Eobeet Walsh 

v. 

Michael Lennon. 

Filed at Ottawa September 25, 18S0 — Rehearing denied March Term, 1S81. 

1. Partnership — acts of one partner as binding upon the firm. One partner 
has not the power to bind the other members of the firm by deed, without 
other authority. 

2. It is, however, within the power of a partner in the mercantile busi- 
ness to borrow money in the name of the firm, and to bind the firm by an 
agreement to pay interest on the same at any lawful rate, and to sign the 
firm name to any writing admitting the fact of borrowing and promising 
to pay, and thereby furnish evidence against the firm and each of its 
members. 

8. In assumpsit against the members of a firm, a note under seal, signed 
in the firm name by one of the partners, reciting that it was given for 
money borrowed, and promising to pay ten per cent interest, is admissible 
under the common counts, and a recovery may be had of both principal 
and interest on producing the note on the trial, to be canceled. In such 
case the seal adds nothing to the force and effect of the instrument as an 
admission of the loan, and of the interest agreed to be paid. 

4. Payment — effect of giving a promissory note. The giving of a promissory 
note for a pre-existing debt, whether sealed or unsealed, does not pay or 
discharge the original debt unless it be agreed that the note shall be ac- 
cepted as payment and satisfaction, — and, in the absence of such an agree- 
ment, assumpsit may be maintained for the original debt if the note be 
produced on the trial to be canceled. 

Appeal from the Circuit Court of Will county; the Hon. 
Josiah McRoberts, Judge, presiding. 

Mr. George S. House, for the appellant: 

The instrument sued upon is executed in the name of 
" Walsh Bros.," and is under seal, and the proof shows that 
it was so executed by Thomas Walsh, one of the partners of 
Walsh Bros., and it is sought to charge the firm upon the 
instrument alone. 

It is an inflexible rule of law, that one partner can not 
affix the seal of his co-partner without his express authority. 



28 "Walsh v. Lennon. [March 

Brief for the Appellee. 

The reason of the rule has its foundation in the fact that the 
seal belongs to the common law, and not to the law merchant, 
while partnership belongs to the law merchant and not to the 
common law. Parsons on Partnership, 186; Paine v. Weber, 
47 111. 44. 

It may be asserted, as the conclusion of all the authorities, 
that when an instrument under seal is executed in the name 
of the firm by one partner only, to charge the firm it must be 
shown, either that some prior authority was given, or subse- 
quent ratification had — an adoption of the act by the other 
partner. 

The plea in abatement puts in issue the existence of the 
partnership, while the plea of the general issue, verified by affi- 
davit, puts in issue, not only the signing of the note, but the 
authority of the partner who signed the note to execute that 
particular instrument. Warren v. Chambers, 12 111. 124; 
Stillson v.Hill, 18 id. 262; Stevenson v. Farnsworth, 2 Gilm. 
718; Zuel v. Bowen, 78 111. 234; Davis v. Scaritt, 17 id. 202. 

The implied authority of one partner to make notes in the 
firm name, and so bind the firm, extends only to transactions 
in reference to the business of the partnership and on part- 
nership account. Wright v. Brosseau, 73 id. 383. 

Messrs. Hill & Dibell, for the appellee: 

While it is undeniably true that one partner can not ordi- 
narily bind his co-partner by an instrument under seal, exe- 
cuted in the firm name, yet it is equally well settled, at least 
in this country, that if the act be within the scope of the 
power and authority of such partner, it will not be vitiated, 
or any the less binding upon the firm, by being under seal. 
Story on Partnership, sec. 122; Tapley v. Butter field, 1 Mete. 
515; Sioeetzer v. Mead, 5 Mich. 107; Everett v. Strong, 5 Hill, 
163; Everett v. Strong, 7 id. 585. 

This exception is very clearly stated in the opinion of the 
court in Tapley v. Butterfidd, supra: u If an act be done 
which one partner may do without deed, it is not the less 



1881.] Walsh v. Lennon. . 29 

Opinion of the Court. 

effectual that it is done by deed. It is clearly within the 
scope of partnership authority." 

It is also well settled that in ordinary commercial partner- 
ships, each partner may draw, negotiate, accept or indorse 
bills of exchange and promissory notes, and checks, and other 
negotiable securities, or any other acts which are incident or 
appropriate to such trade or business. Tilery v. Ginrich, 57 
111. 533; Story on Partnership, sees. 102, 102a. 

As to how far one partner may bind the firm, see Story on 
Partnership, sees. 103-4-5 ; Story on Promissory ISTotes, sec. 
72 ; Wilkins v. Pearce, 5 Denio, 541 ; Sage v. Sherman, 2 
Comst. 418. 

As to the rule, that in matters where one partner may 
properly bind the firm, the addition of a seal will not vitiate 
the act or render it nugatory, see Orn v. Chase, 1 
Meriv. 729; McCullovgh v. Summerville, 8 Leigh, 415; Pur- 
viance v. Sutherland," 2 Ohio St. 478; Despatch Line v. 
Balamy Mfg. Co. 2 N. H. 206; Evans v. Wells, 22 Wend. 240; 
Lucas v. Bank of Darien, 2 Stew. (Ala.) 297; Price <fc Co. v. 
Alexander & Co. 2 Greene, 433 ; Tapley v. Butterfield, 1 Mete. 
515 ; Milton v. Mosher, 7 id. 248 ; Wood v. A. & R. R. R. Co. 
4 Seld. 167; Flagely v. Bellas, 17 Pa. St. 67; Robinson v. 
Crowder, 4 McCord (S. C.) 519; Crozier v. Carr, 11 Tex. 
376; Mitchell Y.St. Andrews Bay Land Co. 4 Flor. 200; 
Sweetzer v. Mead, 5 Mich. 110; Human v. Caniffe, 32 Mo. 
318; Lawrence v. Taylor, 5 Hill, 107; Damon v. Cranby, 2 
Pick. 352 ; Everett v. Strong, 5 Hill, 163 ; Dubois' Appeal, 38 
Pa. St. 231 ; Gibson v. Warden, 14 Wall. 247; Ex parte Bos- 
anquit, 1 DeGex, 439; 2 Pars. Part. 191; Story's Agency, 
sec. 19; 1 Amer. Lead. Cases, 554; Trewett v. Wainwright, 4 
Gilm. 411. 

Mr. Chief Justice Dickey delivered the opinion of the 
Court : 

This is an action of assumpsit, brought by Lennon, against 
Kobert Walsh and Thomas Walsh, as partners, doing busi- 



30 Walsh v. Lennox. [March 

Opinion of the Court. 

ness under the firm name of "Walsh Bros.," upon an instru- 
ment in writing, dated Joliet, 111., May 27, 1875, and 
purporting, on its face, to be signed and sealed by Walsh 
Bros, and by Thomas Walsh, by which they promised, jointly 
and severally, for value received, to pay to the order of Len- 
non $980, one day after date, with interest at ten per cent per 
annum after due, in which instrument it was recited that the 
same was given for money loaned. The instrument also con- 
tained a power of attorney authorizing a judgment by con- 
fession to be entered at any time for the amount then due 
thereon. 

Defendants were served with process. Thomas Walsh 
suffered judgment by default. Robert Walsh made defence, 
upon the sole ground that he did not seal the instrument in 
question. The declaration contained special counts upon the 
instrument, and also the common money counts. 

On the trial, it was proven that Thomas Walsh and Robert 
Walsh were partners, doing business as dealers in dry goods, 
under the firm name, " Walsh Bros.," and that Thomas 
Walsh signed the firm name to the writing in question. It 
is authenticated thus: 

" Witness our hands and seals. 

Walsh Bros. [seal.] 

Thomas Walsh, [seal.] 

[seal.]" " 

The plaintiff recovered, and Robert Walsh appeals to this 
court. 

It is insisted that the instrument, being a sealed instru- 
ment, is not such an instrument as one partner may execute 
for another. It is well settled that the power of a partner 
does not enable him, merely as such, to bind the other mem- 
bers of the firm by deed. It is, however, among the powers 
of a partner in such business, to borrow money in the name 
of the firm, and thus render his partners liable for the sum 
borrowed; and to bind the firm by an agreement to pay inter- 
est on the same at any lawful rate; and to sign the firm name 



1881.] Walsh v. Lennox. > 31 

Opinion of the Court. 

to any writing admitting the fact of the borrowing, and 
promising to pay, and thereby to furnish evidence against the 
firm and each of its members. All this Thomas Walsh did 
do, and thereby, (as a majority of the court think), did bind 
the firm and each of its members. He also added a seal to 
the signature. This he had no authority to do, in behalf of 
his firm or of his partner. This seal added nothing to the 
force and effect of the writing to which the firm name was 
signed, and a majority of the court are of opinion that the 
addition of a seal to the firm name did not impair or vitiate 
the written acknowledgment of the firm, and the written 
promise of the firm contained in the paper, and sanctioned by 
the firm name placed there by one of the partners. 

It is undoubtedly true, that one partner has no power to 
bind the firm by deed, — but this instrument is not sued upon 
as a deed. The declaration contains the common counts. 
The proof shows defendants were partners, and that the 
writing in question has the firm name attached thereto by one 
of the partners. This partner had the right to borrow money 
on the credit of the firm and give the promise of the firm for 
its payment. A seal is not necessary to render such a prom- 
ise effective. The writing, without reference to its effect as 
an obligation, contains a written admission that the money 
was borrowed by the firm at the agreed rate of interest men- 
tioned. Had the partner written a letter to a third party and 
stated these facts in the letter, can any one doubt that such a 
letter, signed by one of the partners, would be competent 
evidence to prove these facts? And can it be contended that 
the adding of a seal to the letter would have impaired the 
force of such evidence? Purviance v. Sutherland, 2 Ohio St. 
478. The giving of a note for a debt, whether sealed or 
unsealed, does not payor discharge the debt, unless it be 
agreed that it shall be accepted as payment and satisfaction, 
and assumpsit may be maintained for the debt, if the note be 
produced on the trial to be cancelled. One partner, acting 
for the firm, may, in its name, appoint an agent and author- 



32 Walsh v. Lennon. [March 

Mr. Justice Scholfield, dissenting. 

ize him to bind the firm by his contracts, made in the name 
of the firm by him, as such agent. Such authority may be 
given in writing, and such writing need not be under seal; 
and if a seal be added it will not vitiate the effect of the 
writing. Lucas v. Bank, 2 Stewart (Ala.) 297. 

There are many respectable authorities to the position, that 
while one partner can not bind his co-partners by deed, yet, 
if the instrument used in commercial transactions be valid 
and effective without a seal, and within the power of a part- 
ner, the attempt to seal the same in behalf of the firm will 
not vitiate its legal effect as an unsealed instrument. See 
Parsons on Part. (2d ed.) p. 191, note m, and Price v. Alex- 
ander, 2 Greene (la.) 427; Lawrence v. Taylor, 5 Hill, 107; 
Sweetzer v. Mead, 5 Mich. 107 ; Tapley v. Butterjleld, 1 Mete. 
575; Gibson v. Warden, 14 Wall. 247 ; and authorities colla- 
ted in Am. Law Reg. vol. 9, K S. pp. 271-2. 

Whatever may be the- true rule on this question, a majority 
of the court are clear that the plaintiff had a right to recover 
under the common counts, by bringing in the paper to be 
cancelled. The proof shows the partnership, from which 
springs the power of one partner to borrow money for the 
firm, and to promise, in behalf of the firm, to pay the princi- 
pal at a given time, and the interest at any given, lawful 
rate. The writing, proved to have been signed by one of the 
firm, without reference to its effect as an obligation, contains 
an admission made by one of the partners, that the money 
was borrowed by the firm at the rate of interest mentioned. 

The judgment must be affirmed. 

Judgment affirmed. 

Mr. Justice Scholfield, dissenting: 

I am unable to concur in the opinion of the court. So 
long as, by our law, a scroll is held to be a seal, and a dis- 
tinction is preserved between sealed and unsealed instruments, 
I feel that we acre bound to give to instruments like that in 
evidence in the present suit, the legal effect that was attributed 



1881.] Walsh v. Lennon. 33 

Mr. Justice Scholfield, dissenting. 

to sealed instruments by the common law. I concede that 
the use of the scroll and the distinction between sealed and 
unsealed instruments, for most purposes, might well be abol- 
ished; but the duty of doing this, as I conceive, rests upon 
the legislature and not upon the judiciary. 

The proof, in this case was: First — That Robert Walsh 
and Thomas Walsh, at the date of the instrument in evidence, 
were partners, in Joliet, in the dry goods business. Second — 
That Thomas Walsh executed that instrument. Third — The 
instrument itself. Fourth — A computation of the amount 
due upon tfoe instrument. 

There was no other evidence before the jury. There is, 
therefore, no pretense that Robert Walsh was present ratify- 
ing the act of Thomas Walsh in signing the firm name to 
the instrument, nor that he, by any subsequent act, ratified 
such act. So, also, the only evidence of the original consid- 
eration of the instrument is found in its own recitals. 

This court, in Fames, impleaded, v. Preston et al. 20 111. 389, 
held that a promissory note executed by one of a firm, in 
the firm name, with a scroll, is a sealed instrument as to 
the party who signed it, and that an action of assumpsit 
could not be maintained upon it. By necessary implication, 
the ruling was, also, that the seal was the seal alone of the 
party who affixed the scroll. 

The common law rule was that a sealed instrument, exe- 
cuted in the name of a firm by one of its members, without 
express authority of the other members of the firm or their 
ratification of the act of execution, is the deed of the mem- 
ber executing it, only, and he alone is bound by it. This 
is shown by the authorities cited in the opinion, — but they 
also show that the rule is subject to this qualification — that 
the instrument shall be one to the validity of which a seal is 
necessary. And so they hold, in bills of sale of personal 
property, in deeds of assignment of personal property, and 
in chattel mortgages, and in all kindred cases where the addi- 
tion of a seal neither adds to nor detracts from the legal 
3—98 III. 



Walsh <b. Lennon. [March 



Mr. Justice Scholfield, dissenting 



effect of the instruments, the fact that one partner in making 
and signing the firm name to the instruments, superadds a 
scroll, does not render them inadmissible in evidence against 
the non-executing partners. But this is upon the principle 
that, as to such instruments the seal in nowise affects the 
legal nature or character of the instruments. As to them, 
not being required or recognized by law, it is an unmean- 
ing symbol. The law has prescribed that the instruments 
shall be executed by the simple signature of the names of the 
parties to be bound, and any formula beyond and in addition 
to this is outside of the law, and hence to be regarded as of 
no legal significance. But that is not the effect of adding 
a seal to an instrument, which, without the seal, would be 
but a promissory note. In such case, what was before a 
promissory note, becomes, by the addition of the seal, a 
deed, thus entirely changing the legal character and effect of 
the instrument, as was held in JEames Impl'd v. Preston et al. 
supra. 

It is clear, upon authority, that, in the present case, the 
action can not be maintained on the instrument, as against 
Robert Walsh. Collyer on Partnership, (6 ed.)478; Gerrard 
v. Basset et al. 1 Dallas, 119; Montgomery v. Bard et al. 2 
Ben Monroe, 244; Trimble v. Smith, 2 A. K. Marshall, 375 ; 
Button et al. v. Uampson et al. Wright (Ohio) 93 ; McDonald 
& Mills v. Eggleson et al. 26 "Vermont, 154; Story on 
Partnership, § 119; 1 Am. Leading Cases (4 ed.) 450-1. This 
is conceded in the opinion of the court, but it holds that, 
nevertheless, there may be a recovery under the common 
counts on the evidence alone afforded by this instrument. 

The general principle has been recognized by this court, 
that if a bond be given for a simple contract debt, the latter 
is lost in the former, the specialty being of a higher security. 
Warm et al. v. McNulty, 2' Gilman, 358 ; and if this, as 
applicable to the present case, may be accepted as the law, it 
must follow that an action could only be maintained against 



1881.] Walsh v. Lennon. 35 

Mr. Justice Sciiolfield, dissenting. 

Thomas Walsh, upon the deed, and not upon the original 
consideration. 

In Clement v. Brush, 3 Johnson's Cases, 188, the question 
was, whether a partner whose name was signed to a promis- 
sory note under seal, (given for goods sold and delivered to 
the firm,) by his co-partner, without express authority, was 
bound. The court said: "One partner cannot bind his 
co-partner by seal. The defendant Brush, who executed it, 
is alone bound by the specialty; and, it being a debt of a 
higher nature, it extinguished the simple contract or partner- 
ship debt." 

In Morris v. Jones & Spence, 4 Harrington (N. J.) 428, 
suit was brought on a sealed instrument executed by John 
Spence in the name of Jones & Spence, for money borrowed 
by the firm. The court held, First — That there could be no 
recovery on the sealed instrument, because, being under seal, 
it was obligatory on Spence alone, and was not the deed of 
Jones, as Spence had no authority to bind him by such an 
instrument. Second — That there could be no recovery on 
the count for money lent, because the taking of the obliga- 
tion of Spence for the money so lent, extinguished the remedy 
on the simple contract against the partners, and the remedy 
was against Spence alone, on the instrument. 

In Nunnely v. Doherty, 1 Yerger, 26, the question was, 
first, whether the partner could bind the firm by a sealed in- 
strument or deed, executed in consideration of a partnership 
debt, where the partnership agreement was under seal, but 
contained no such power; and, secondly, if he could not, 
whether an action could be sustained against the partnership 
upon the original simple contract debt. The court answered 
both questions in the negative, and observed, in respect of 
the latter : " This point forms the gravamen of the case on 
the part of the plaintiff, and, though having very little doubt, 
we were willing to take an admsari, to see if there was any 
possible way of getting over it; but, on looking into the 
books within reach, the hope of finding any such way is 



36 Walsh v. Lennox. [March 

» — 

Mr. Justice Scholfield, dissenting. 

extinguished, and we are, with reluctance, constrained to say 
that the plaintiff can not maintain an action on the simple 
contract, for by taking and accepting the sealed note for the 
simple contract, it is merged and gone." This is the doc- 
trine laid down in Higgins' case (4 Coke's Rep. 45), and it 
has been followed ever since. It is there said : *' He who 
has a debt by simple contract, and takes a bond for the same 
debt, or any part of it, the simple contract is determined." 
In Waugh & Finley v. Carrigen (id. 31) there was like ruling. 
McBride v. Hogan, 1 Wend. 326, recognizes the same doc- 
trine. 

In Bond v. Aitkin, 6 "Watts & Sergeant, 165, one of the 
questions was whether the bond of one partner, taken at the 
time money is loaned to the firm, and as the consideration 
for such loan, is an extinguishment of the debt, and it was 
held that it was. The court said : "Where the bond of one 
of the partners is taken for an antecedent partnership debt, it 
may be considered either as a payment and extinguishment 
of such debt, or only a collateral security, according to the 
nature of the transaction and the circumstances attending it. 
Wallace v. Fairman, 4 Watts, 378. But where there is no 
antecedent debt, but the bond of one partner is taken at 
the time money is loaned to the partnership, and as the con- 
sideration for loaning the money, it can hardly be treated as 
collateral security. It must be considered as all one transac- 
tion, and the bond as the only security contemplated ; unless, 
perhaps, there were strong and positive evidence to show an 
express agreement to the contrary by all parties. If so, then 
in this case the bond was the only debt; the plaintiff, if he 
recovered at all, must recover on it, and not on the money 
counts. And as there was no implied contract by both, so 
the express promise proved was only by one." 

I am aware that it has been held by some courts that, as a 
bond is not an extinguishment of a simple contract debt, 
where it is intended that it should not be, a bond by one 
partner, in the name of the firm, for a simple contract debt, 



1881.] Walsh v. Lenxon. 37 



Mr. Justice Scholfield, clissentinj 



will not discharge the firm, because it is apparent on the face 
of the instrument that it was not intended to accept the lia- 
bility of a single partner in lieu of the firm, and, conse- 
quently, that the firm may be sued upon the original simple 
contract. But this ruling, in my opinion, is well shown by 
the learned editors of the American Leading Cases, in their 
notes to Livingston v. Roosevelt, etc., Rogers v. Bachelor, vol. 
1 (4th ed.), 451, to proceed upon a misapprehension of the 
extent to which intention can control the principle of extin- 
guishment. They say : "The only case in which a bond 
will not be an extinguishment in law of a simple contract, is 
where it is intended to be a collateral security, and not an 
absolute liability; but if a partner give an absolute liability, 
under seal, it will extinguish his liability upon the parol 
contract, and if the parol liability is extinguished as to one, 
it is extinguished as to all, because a part can not be sued 
alone ; and where an absolute liability by deed is thus given, 
intention can not prevent either the extinction of the parol 
liability of the one giving it, or the discharge of all from the 
parol liability as a legal consequence of the discharge of one." 
But, they say, " where such a bond has been taken under a 
misapprehension of its effect in discharging the firm, equity 
may relieve against extinguishment, and keep alive the lia- 
bility of the firm." See, also, 2 Daniels on Negotiable In- 
struments, § 1293; Story on Partnership, § 155. 

"Whether, therefore, the suit here is to be regarded as on the 
instrument itself, or on the original consideration, the judg- 
ment below is wrong, because unsustained by legal evidence, 
and should be reversed. 

The suit is not maintainable against Robert Walsh on the 
instrument, and the original simple contract being merged 
in the instrument, there can be no recovery except on the in- 
strument, and that must be against Thomas Walsh alone. 

I am authorized to say that Mr. Justice Mulkey, who 
joins with me in dissenting from the opinion of the Court, 
concurs in the foregoing views. 



38 Cubberly v. Scott et al. [March 

Syllabus. Brief for the Appellant. 



Delerhe P. Cubberly 

v. 

James A. Scott et al. 

Filed at Ottawa November 17, 1SS0 — Rehearing denied March Term, 1SS1. 

Married women — engaging in business — employment of husband as clerk. 
Under our law a married woman may own her separate estate, and may 
invest any funds she may have in business without thereby subjecting her 
property so invested to the payment of her husband's debts. She may em- 
ploy her husband as a clerk and to assist in conducting the business as any 
other person, and will not thereby lose her right of property as against his 
creditors. 

Appeal from the Appellate Court for the First District; — 
heard in that court on appeal from the Superior Court of 
Cook county ; the Hon. S. M. Moore, Judge, presiding. 

Messrs. Becker & Dale, for the appellant : 

The business was commenced in April or May 1874, dur- 
ing which months, from $7000 to $9000 worth of goods were 
purchased while the law of 1861 was in force. That law was 
not designed to overcome the presumption of the common 
law, that the husband owns all the personal property in the 
possession of the wife while they are living together; and if 
she claims it, the onus is on her to show, not only that she 
acquired it in good faith from some person other than her 
husband, but also where and of whom she obtained the con- 
sideration paid for it. Reeves v. Webster, 71 111. 307. 

While a married woman, under the act of 1861, may pur- 
chase goods on credit for her own use in her own business 
already established, we know of no decision which authorizes 
her to establish a business or acquire an estate in their incep- 
tion on credit. Robinson v. Wallace, 3 Wright (Pa.) 129; 
Hairjht v. McVeigh, 69 111. 624; Nispel v. Laparte, 74 id. 
306 ; Carpenter v. Mitchell, 50 id. 470 ; Thompson v. Weller, 
85 id. 197. 



1881.] Cubberly v. Scott et al. 39 

Brief for the Appellees. 

If the husband's labor and skill enhanced the wife's prop- 
erty and increased the same, the entire fund embarked in the 
enterprise, together with the increase, will not constitute the 
separate property of the wife, but will be liable for the debts 
of the husband. Wilson v. Loomis, 55 111. 352; Robinson 
et al. v. Brems et al. 90 id. 351; Elijah v. Taylor, 37 id. 247; 
Wortman v. Price, 47 id. 22; Brownell v. Dixon, 37 id. 197; 
Dean Y.Bailey, 50 id. 481; Blood Y.Barnes, 79 id. 437; 
Primmer v. Claybaugh, 78 id. 94 ; Guill v. Hanny, 1 Bradw. 
490; Card Y.Robinson, 2 id. 19. 

Mr. M. J. Dunne, for the appellees : 

A married woman possessed of separate property may 
employ her husband as her agent to transact her business, 
either generally or in a particular case. Brownell v. Dixon, 
37 111. 197. 

The wife may entrust means, inherited by her since 1861, 
to her husband to loan or invest, and it will be protected in 
his hands to the same extent as would the money of a stranger 
under like circumstances. Sweeney v. Damron, 47 111. 450; 
Dyer v. Keefe, 51 id 525; McLowry v. Bartloio, 53 id. 340; 
Harris v. Haines, 54 id. 340; Greenwood, v. Jenlde, 68 id. 
320; Farwell v. Patterson, 43 id. 58 ; Cole v. Van Riper, 44 
id. 58; Dean v. Bailey, 50 id. 481; Elijah v. Taylor, 37 id. 
247 ; Primrose v. Claybaugh, 78 id. 94 ; Baker v. Baker, 53 
id. 163; Hazelbaker v. Goodfellow, 64 id. 238; Haight v. 
McVeagh et al. 69 id. 624; Wing v. Goodman, 75 id. 159; 
Patten v. Patten, id. 440; Blood v. Barnes, 79 id. 437; Bon- 
gard v. Cox, 82 id. 11. 

The same rule has been held in other States. Abbey v. 
Deyo, 44 Barb. 374; Buckley v. Wells, 33 K Y. 518; Owen 
y. Caivley, 36 id. 601;- Vorheis v. Bonestel, 7 Blatch. 495; 
16 Wall. 16; Wilman v. Andersen et ux. 6 Wright, 311; 
Welch v. Kline, 57 Pa. 428; Cooper v. Harr, 49 Ind. 394; 
Mitchell v. Sawyer, 21 la. 582; Rankin v. West, 25 Mich. 
195; Webster v. Hildreth et ux. 33 Yt. 457; White v. Hildreth, 



40 Cubberly v. Scott et ah [March 

Opinion of the Court. 

32 id. 265; Mclntyre v. Knowlton, 6 Allen, 560; Fuller v. 
Alden, 23 Wis. 301; Newton v. Clark, 1 Disney (Ohio) 265. 

Mr. Justice Scott delivered the opinion of the Court: 

Only questions of fact are involved in this case, and no 
extended discussion will be necessary. 

This is a creditor's bill, brought by Delerhe P. Cubberly, 
to subject a stock of goods claimed by Isabella Scott, to the 
payment of a judgment in favor of complainant and against 
James A. Scott, who is the husband of the principal defend- 
ant. Since April or May, 1874, Isabella Scott has been car- 
rying on business in the name of "Scott & Co.," her husband 
being with her in the store as her clerk. Prior to that date, 
the judgment debtor had been engaged in the same line of 
business with perhaps two different partners, and had failed. 

The only question in the case is whether the present stock 
of goods is, in fact, the property of claimant. There is evi- 
dence tending to show that the goods with which to com- 
mence the present business, were bought with money belong- 
ing to her and derived from sources other than her husband. 
The ownership of the property and the good faith of the 
transaction were involved in the decisions of the Superior and 
Appellate Courts. Both courts found adversely to the posi- 
tion taken, that James A. Scott was the owner of the stock 
of goods, and, of course, they must have found affirmatively 
that claimant was the bona fide owner. After a careful con- 
sideration of the testimony, no reason is perceived for differ- 
ing from the conclusions reached by the lower courts. 

Under our laws, a married woman may own her separate 
estate, and may invest any funds she may have in business, 
and when that is done, as the evidence tends to show was 
done in this case, her property can not be subjected to the 
payment of her husband's debts. The fact her husband was 
a clerk in the store does not affect the rights of claimant. 
She could as rightfully employ her husband to act as her 
clerk and to assist in the transaction of the business as any 



1881.] Bowen v. Galloway, Eeceiver. 41 

Syllabus. 

other person. The good faith of the transaction is always a 
question of fact. Upon this branch of the case, there is no 
just reason for being dissatisfied with the decision of the 
trial court. 

The judgment of the Appellate Court will be affirmed. 

Judgment affirmed. 



Elias K. Bowen 

V. 



A. J. Galloway, Keceiver. 

Filed at Ottawa September 25, 1880 — Rehearing denied March Term, 1881. 

1. Description in deed — identity of lot. Where one-half of block num- 
bered 18 was divided into eight lots forty feet wide and 116 feet deep, run- 
ning back to an alley, and lots one and two were sub-divided into five lots 
twenty-three feet wide and eighty feet deep, running across the original lots 
one and two, and the owner of lot four of the sub-division, on which was a 
two-story house with a basement, and whose title was of record, executed a 
deed of trust to secure a loan of money, in which the lot was described as 
lot 4, in block 13, of the addition, "having a frontage of 24^- feet, and a 
depth of 80 feet — one two-story and basement frame dwelling house thereon," 
and it appeared that no such dwelling house was on the original lot 4, it was 
held, the description in the trust deed was sufficient to render the record of 
that deed notice to subsequent purchasers of lot 4, of the sub-division, and 
that the description was sufficient to show that sub-lot 4 was the one con- 
veyed, and not the original lot 4. 

2. It is not necessary to the conveyance of any parcel of land that it 
shall be called by any particular name, but it will be enough if the descrip- 
tion is such as to identify the property. Critical accuracy in the description 
is not essential. 

3. Recording act — sufficiency of description in the deed. Where the 
description of land in a deed is, by mistake, so defective that the property 
can not be identified, the record of such deed will not be notice to a subse- 
quent purchaser, and such a deed can not be reformed as against a subse- 
quent bona fide purchaser of the property. 

Appeal from the Circuit Court of Cook county; the 
Hon. E. S. Williams, Judge, presiding. 



42 Bowen v. Galloway, Receiver. [March 

Brief for the Appellant. 

Mr. H. M. Matthews, and Mr. E. E. Bowen, for the 

appellant: 

The decree is erroneous in finding that Foraast did con- 
vey sub-lot 4 to Monroe. The only deed in evidence shows 
that he conveyed te lot 4, of block 13, in Ogden's Addition 
to Chicago, having a frontage of 24J feet and a depth of 80 
feet. Also one two-story and basement frame dwelling 
thereon.". These dimensions apply only to sub-lot 5, which 
was one of the lots then owned by Foraast. So far as the 
house is concerned, there is nothing in that to show which lot 
was conveyed. The conveying of lot 4, using the plat descrip- 
tion, was only a conveyance of lot 4, and not of sub-lot 4. 

A description by metes and bounds is the highest class of 
description, and must prevail over any other one, and the 
description by the surveyed plat falls within the same rule. 
Davis v. Rawford, 17 Mass. 211 ; Lunt v. Holland, 14 Mass. 
149; Jackson v. Cole, 16 Johns. 256; Jacksori v. Loomis, 18 
Johns. 81 ; Van Wyck v. Wright, 18 Wend. 157; Krusev. 
Scripps, 11 111. 103; Benedict v. Gaylord, 11 Conn. 332 ; Butler 
v. Midger, 7 Cow. 723; Jackson v. Sprague, 1 Paine, 496; 
Myers v. Ladd, 26 111. 417 ; Sickmon v. Wood, 69 id. 330. 

The decree is erroneous in finding that the recording of 
the trust deed was notice to subsequent purchasers of sub-lot 
4. The notice given by the record of a deed is no greater 
than the legal meaning of the description. 

Where there is any ground for question, the fact that the 
grantor does not hold the legal title of the land conveyed, 
affords no evidence of mistake. Rogers v. Kavenaugh, 24 
111. 585; Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Jackson v. 
Wilkinson, 17 Johns. 157; Wilson v. Rogers, 77 111. 79 ; Suth- 
erland v. Sutherland, 69 id. 488 ; Kellogg v. Hastings, 70 
id. 598. 

Messrs. E. W. and W. W. Evans, for the appellee. 



1881.] 



Bowen v. Galloway, Keceiver. 



43 



Opinion of the Court. 



Mr. Chief Justice Dickey delivered the opinion of the 
Court : 

In December, 1868, and before that time, a map of block 
13, in Ogden's addition to Chicago, recorded in the recorder's 
office of Cook county, was as follows : 

Plat of Block 13 of Ogden's Addition to Chicago. 

W. Indiana St. 



116 



13 



18 



23 


Ft 


» 

1 


23 


24.5 




Subdi 


vision 


of Lois 




..1.. 


...2... 


...3.,. 


...4... 


...5... 




1 and 


2, 

2 


etc. 


00 


23 


" 


" 


23 


24.5 




3 




t 




4 




e 




5 




s 


6 




7 
















8 




to 

CO 




11« 







Hubbard St. 

That half of the block lying on Sangamon street was 
originally platted in eight lots, fronting on Sangamon street 
and running back to an alley near the centre of the block. 

These lots fronting on Sangamon street (with the exception 
of lot 8, which occupied the corner of Sangamon and Hub- 



44 Bowen v. Galloway, Eeceiver. [March 

Opinion of the Court. 

bard streets) were 40 feet wide on Sangamon street, and run 
back to the alley, a distance of about 116 feet. 

Afterwards, and before December, 1868, the original lots 1 
and 2, embracing the north 80 feet of that half of the block 
fronting on Sangamon street, were subdivided into five lots, 
as shown on the map, each fronting on West Indiana street. 
The lots of this subdivision were numbered 1, 2, 3, 4 and 5; 
lot 1 lying upon the alley and lot 5 occupying the corner of 
West Indiana and Sangamon streets. These lots run back 
80 feet from West Indiana street (across the original lots 1 
and 2), and were 23 feet front on West Indiana street, except 
lot 5, which was 24J feet. 

About the 31st of December, 1868, Knud K. Foraast had 
acquired title to lots 4 and 5 of the subdivision of original 
lots 1 and 2, which title was of record. He had a contract 
for the north 20 feet of the original lot 4 in this block 13, 
which was not recorded. 

On lot 4, in the subdivision, was a two-story and basement 
frame dwelling. 

In this condition of affairs, Foraast executed to Henry S. 
Munroe a deed of trust, to secure his promissory note of that 
date, made payable to the Stock and Mutual Insurance Com- 
pany, at sixty days, for the sum of $1800, with interest at 
the rate of 7 per cent, by which he conveyed to Munroe 
"all the following described lots and premises, situated in 
the city of Chicago, in the county of Cook, State of Illinois, 
to-wit: Lot No. 4, in block 13, in Ogden's addition to 
Chicago, having a frontage of 24 J feet and a depth of 80 
feet. Also one two-story and basement frame dwelling house 
thereon." This instrument was duly executed and acknowl- 
edged by Foraast and his wife, and filed for record in the 
recorder's office of Cook county, on the 6th day of March, 
1869. 

This is a bill brought by Andrew J. Galloway, the holder 
of the note described in that deed of trust, as receiver of the 
National Insurance Company, and afterwards prosecuted by 



1881.] Bowen v. Galloway, Receiver. 45 

Opinion of the Court. 

E. Webster Evans, as li older of said note as receiver of the 
Stock Mutual Insurance Company. 

The bill is brought to foreclose this deed of trust made to 
Munroe, and to subject lot No. 4, of the subdivision of lots 
1 and 2, of block 13, to sale for the satisfaction of the debt 
mentioned in the promissory note, — and to that end the 
prayer of the bill is that the description in the trust deed to 
Munroe shall be so reformed as to distinctly identify that lot. 
Bowen and others were made defendants. Bowen claims the 
property in question by conveyances made by Foraast subse- 
quent to the record of the deed of trust to Munroe, and 
claims to hold as a bona fide purchaser of sub-lot 4 without 
notice of the deed of trust made by Foraast to Munroe, and 
insists that the description contained in the deed of trust to 
Munroe was not sufficient to put him on inquiry or charge 
him with notice of the existence of that deed. As between 
the creditor claiming under the Munroe deed of trust and 
Foraast, there can be no question that complainant was enti- 
tled to the relief sought. For it is distinctly shown that it 
was the intention of both parties to describe lot 4 of the sub- 
division, and not the original lot 4 of the block. 

The question, however, for decision is, whether the de- 
scription in the Munroe deed of trust is sufficient to render 
the record of that deed notice to subsequent purchasers. 

It is not necessary to the conveyance of any parcel of land 
that it should be called by any particular name. It is only 
necessary that the description should be such as to identify 
the property. Critical accuracy in the description is not 
essential. Upon the plat as it then stood upon record, there 
were in block 13 two lots 4, — one the original lot 4, with 40 
feet front and 116 feet deep, — the other, sub-lot 4, 23 feet front 
and 80 feet deep. On sub-lot 4 was a two-story and base- 
ment frame dwelling; on original lot 4 there was no such 
building. Foraast, by the records, had title in fee simple to 
sub-lot 4, and had no title whatever to the original lot 4 



46 Bowen v. Galloway, Receiver. [March 

Opinion of the Court. 

of block 13. It seems plain that with this description, 
no reasonable man could fail to identify the property con- 
veyed by this Munroe trust deed. The mistake of 18 inches 
in stating the frontage of the lot is so- small as to be a matter 
of no moment whatever, and the identification, by the de- 
scription of the house which stood upon the lot, is conclu- 
sive. 

The prayer for reformation of the deed is not a matter 
that is at all essential. The deed was sufficient without 
reformation. It was no doubt better that in the decree it 
should be more distinctly described. It is true, that where 
the description of property in a deed is, by mistake, so de- 
fective that it can not be identified, the record of such deed 
would not be notice to a subsequent purchaser; and it is also 
true that while such a mistake in a deed may be reformed, as 
between the parties to it, no reformation of such deed could 
lawfully be made as against a subsequent bona fide purchaser 
of the property. But in this case we can not regard Bowen, 
or any of those through whom he derives title, as bona fide 
purchasers. The record of the Munroe trust deed was suffi- 
cient notice to put each and every of them upon inquiry. 
Such inquiry could not fail to furnish them the necessary in- 
formation as to the property which was described in that 
deed. 

There is an attempt to show, by the testimony of some of 
the witnesses, that there was a story and a half or a two story 
frame building with a basement on original lot 4, — but the 
testimony, when carefully scrutinized, fails to show that this 
was true. The building spoken of by the witnesses must 
have been on original lot 3; and even if shown to have been 
upon original lot 4, it was not a dwelling house, nor had it, in 
fact, any basement. Two of the witnesses talk about a base- 
ment to that house, but upon cross-examination they show 
clearly that it had no basement. The house simply stood 
upon posts, four or five feet high, which were boarded in. 
The evident truth, as shown by this record, is that the small 



1881.] Bennett et al. v. Stout et til. 47 

Syllabus. 

lot 4 did have upon it a two story frame and basement dwell- 
ing, and that original lot 4 never had any such dwelling 
upon it. 

The decree of the circuit court of Cook county must be 

affirmed. 

Decree affirmed. 



Daniel H. Bennett et al. 

v. 
Peter S. Stout et al. 

Filed at Ottawa November 20, 1880 — Rehearing denied March Term, 1881. 

1. Fraudulent conveyance — made before lien attaches, may be avoided. 
The fact that at the time a conveyance is made to the debtor's wife, the cred- 
itor's judgment was no lien on the land, by reason of no execution having 
been issued thereon within a year, will not prevent the creditor, after the 
revival of his judgment and suing out an execution, from questioning the 
bona fides of the transaction. If the debtor paid for the land, and had the 
title made to his wife, in fraud of the rights of the creditor, the land may be 
reached in equity by the creditor. 

2. Same— -former decision.. The case of Newman v. Willetts, 52 111. 98, is 
not to be understood as announcing a different doctrine. That case holds, and 
was only intended to hold, that where a bill is filed in aid of an execution, 
the judgment on which the execution was issued must be, at the time of 
filing the bill, a lien on the land sought to be subjected to its payment. 
What was said in respect to the necessity of the existence of a lien in 
order that the creditor might have his remedy, must be taken as appli- 
cable only to the facts of that case. 

3. Same — wife employing husband. The fact that a wife living with her 
husband employs him, as her agent, to cultivate her farm, keep it in repair, 
have the grain harvested, stored and sold, is not evidence that the property 
belongs to the husband, nor does such an agency convert the products of the 
farm to the husband, or render them liable for his debts. 

4. Evidence — declarations of others, not in the presence of the grantee, inadmis- 
sible to show fraud. On bill to set aside a conveyance of land to a wife, by a 
creditor of her husband, on the ground that the latter bought and paid for the 
property, and had the title made to his wife to defraud his creditors, the decla- 
rations of the husband and others, made when the wife was not present, and 



48 Bennett et al. v. Stout et al. [March 

Briefs of Counsel. 

without her assent, are not admissible to affect her rights. The same rule 
applies to declarations of her grantor. They can not be received to defeat her 
title. 

Appeal from the Appellate Court for the Second Dis- 
trict; — heard in that court on writ of error to the Circuit 
Court of Kendall county ; the Hon. Hiham H. Cody, Judge, 
presiding. 

Mr. E. F. Bull, for the appellants, presented an argument 
commenting only upon the facts in the case, in the opening. 

Mr. Charles Wheaton, for the appellees : 

The declarations of the husband of Mrs. Stout, or of her 
grantor and others in her absence, are not admissible for any 
purpose, unless she is connected with them in some way. 
Prior v. White, 12 111. 261; Pierce v. Hasbrouck, 49 id. 23. 

In a State where a feme covert may own property in her 
own right, and carry on business in her own name, she may 
employ her husband to look after her property without sub- 
jecting it to the payment of his debts. Drlggs v. Russell, 3 
B. R. 256; Shackelford v. Collier, 6 Bush. 149; Voorhees v. 
Barristed, 5 Blatch. 495; 16 Wall. 16; Danforth v. Wood, 
11 Paige, 9; Bongard v. Core, 82 111. 19. 

Complainant's judgment being no lien when this land was 
conveyed to the wife of the debtor, he can not have the same 
set aside, even if it was a voluntary settlement on her by the 
debtor. Newman et al. v . Willetts, 52 111. 99; Weis v. Tiernan, 
91 id. 27 ; Beavan v. Lord Oxford, 6 D. M. & G. 507 ; Kerr 
on Fraud, 530. 

Mr. E. F. Bull, for the appellants, in reply: 

The cases of Newman et al. v. Willets and Weis v. Tiernan, 
have no application to this case, the judgments being dor- 
mant and not having been revived, as in this case. 

Any voluntary settlement, whether made in good faith or 
not, can be set aside in favor of any creditor whose claim 



1881.] Bennett et al. v. Stout et al. 49 



Opinion of the Court. 



existed at the time of such settlement, provided such creditor 
has reduced his claim to judgment and obtained execution 
thereon. Moritz v. Hoffman, 35 111. 553; Jassoy v. Delius, 
65 id. 469 ; Mitchell v. Byrne, 67 id. 522. 

Mr. Justice Walker delivered the opinion of the Court: 

In the year 1859, appellants recovered a judgment 
against Peter S. Stout, in the La Salle circuit court, on a 
claim for goods sold to him previous to that time; but an 
execution was not issued within a year from the adjournment 
of the court. The judgment, in November, 1864, was 
revived by scire facias. Between the time the judgment 
became dormant and its revival, and in the year 1862, Will- 
iam Cooney conveyed a farm in Kendall county to Mary F. 
Stout, the wife of defendant Stout. Afterwards, in Novem- 
ber, 1864, she conveyed to the defendant Van Fleet. In 
March, 1865, an execution was issued on the revived judg- 
ment, against Stout, directed to the Sheriff of Kendall county, 
which was, on the 14th day of April following, levied on the 
lands in controversy, but the certificate of levy was not filed 
for record until the 26th of February, 1866, the land being 
in the possession of Van Fleet, under his conveyance from 
Mrs. Stout. It is claimed, that at the time of this levy a 
large amount of personal property was seized, which was re- 
plevied, but ultimately, its proceeds amounting to over $700, 
was recovered by the plaintiffs in execution, and should have 
been, but were not, credited on the execution. 

This bill was filed to uncover the title to the land and 
subject it to sale in satisfaction of the execution, and it is 
claimed that Stout was the real purchaser and paid with 
his own means for the land, but, to hinder, delay and de- 
fraud plaintiffs in execution, he had it conveyed to his wife, 
and to more effectually accomplish that purpose, he and his 
wife subsequently conveyed the land to Van Fleet, who was 
an uncle of his wife. 

4—98 III. 



50 Bennett et ah v. Stout et ah [March 

Opinion of the Court. 

Answers were filed denying the fraud, and on a hearing 
in the circuit court, on bill, answers, replications and proofs, 
a decree was rendered dismissing the bill for want of equity. 
Thereupon complainants prosecuted a writ of error from the 
Appellate Court for the Second District, where, on a hearing, 
the decree of the circuit court Avas affirmed, and they bring 
the case on appeal to this court and ask a reversal. 

It is urged, that as this conveyance was made to 
Mrs. Stout before the judgment became a lien on the land, 
there is no ground for questioning the purposes of the con- 
veyance to her; that as complainant, when the title was con- 
veyed to her, had no lien, they have no right to inquire 
whether the conveyance was fraudulent or made in good 
faith, and the case of Newman v. Willetts, 52 111. 98, is referred 
to as announcing the doctrine. That case holds, and was 
only intended to hold, that where a bill is filed in aid of an 
execution, the judgment on which it was issued must be, at 
the time of filing the bill, a lien on the land. In that case 
there was no execution on the judgment within a year after 
its rendition, and an execution was issued without reviving 
the judgment, and it was to aid this unauthorized execution 
that bill was filed; and all that was there said about a lien 
was in reference to that state of facts, and was intended to be 
no more comprehensive. To hold that equity would afford 
no relief, except in cases where the judgment had become a 
lien on the real estate at the time of the sale, would virtually 
repeal the statute. But few sales are made to defraud credi- 
tors after their claims have become a lien. 

Fraudulent conveyances, almost without exception, are 
made before judgment, or a lien has attached, and the statute 
is mainly beneficial in reaching cases where the conveyance 
is made before there is any lien. Where a lien has attached 
before a fraudulent conveyance is made, there is no need of 
the statute or a bill to aid the execution, as, under it, a sale 
may be made which would remove the fraudulent title by its 
own force. 



1881.] Bennett et al. v. Stout et al. 51 

Opinion of the Court. 

The question to be decided is one of fact. It is: Did 
Stout purchase the laud with his own means and have it con- 
veyed to his wife for the purpose of preventing complainants 
from collecting their judgment against him? 

The evidence is inharmonious, and a portion of it is very 
contradictory and irreconcilable. Many declarations of the 
husband, when the wife was not present and in nowise as- 
sented, are in the record and are pressed as showing fraud. 
Mrs. Stout's evidence seems to be consistent, and she denies 
all fraud or intention to commit a fraud. She swears positively 
that she made the first payment with her own earnings and 
savings before her marriage; that her father loaned her $500 
to pay on the farm, and the balance was paid with t lie pro- 
ducts from the farm; that her father advised her to purchase 
it, and the evidence shows that her mother went with her to 
examine it before she purchased. Her evidence is corrobo- 
rated by that of her husband. 

To overcome this evidence is the fact of the husband's in- 
debtedness, his negotiating for the purchase, and his declara- 
tions as to the sources from which the money to make the 
first payment came, with his other declarations, which were 
all made in her absence and without her assent. We find 
none attributed to her inconsistent with good faith on her 
part. When he said he obtained the $400 first paid, from 
Doud, if it is true he made such a declaration, she was not 
present, nor did she admit its truth, and it would violate all 
rules of evidence to permit the declarations of a third person 
or a grantor to defeat the title of his grantee. After the con- 
veyance is made, to permit the grantor to make statements 
that would defeat his grantee's title would be extremely unjust 
and fraught with great iniquity. See Pierce v. Hasbrouck, 
49 111. 23; Prior v. White, 12 id. 261 ; Fisher v. Stevens, 16 
id. 397; Meixsell v. Williamson, 35 id. 529; Aiken v. Hodge, 
61 id. 436; Pike v. Colvln, 67 id. 227, and Simmons v. Jenkins, 
76 id. 479. And equally wrong to give eifect to the declara- 
tions of persons not parties to the conveyance. It would 



52 Bennett et al. v. Stout et al. [March 

Opinion of the Court. 

hardly appear necessary to quote authorities on so clear and 
just a proposition. 

It seems to be urged that Stout cultivated the farm, and 
this is strong evidence of fraud. Where the wife may own 
property of this character, she, from the necessity of the case, 
must have it cultivated, kept in repair, the grain harvested, 
stored and sold, and, as it is not deemed proper by commu- 
nity that she should do so in person, it involves the necessity 
of employing an agent, and it has been repeatedly held that 
the wife may employ the husband for the purpose. In fact, 
owing to their relations, where she regards him as competent 
for the place, who could be more proper. In fact, when 
living together and on the farm of the wife, the harmony of 
the family would seem to require that a stranger should not 
be given its entire control, excluding the husband from all 
management of the farm, its stock and affairs. 

Mrs. Stout, in this case, swears her husband was her agent 
both in the purchase of the farm and in its cultivation and 
management. Nor does such an agency convert the pro- 
ducts of the farm to the husband or render them liable for 
the debts of the husband's creditors. Bongard v. Core, 82 
111. 19. 

This question is sufficiently discussed in that case to re- 
quire nothing more on that question in this. 

Although there is some evidence in the record tending to 
prove the fact that the first payment was made with 
money of the husband, we think it overcome by other evi- 
dence, and that the decree of the circuit court is sustained 
by the evidence, and the decree of the Appellate Court must 

be affirmed. 

Decree affirmed. 



1881.] Olin v. Bate et al. 53 

Syllabus. Brief for the Appellant. 



Henry Olin 

v. 

John Bate et al. 

Filed at Ottawa November 17, 1880 — Rehearing denied March Term, 1881. 

1. Contract — of doubtful propriety, not enforcible in equity. An agreement 
to admit a person into a medical institute and assist in the graduation, and 
granting to him a diploma, in consideration of such person abandoning a fic- 
titious name nearly the same as that of the other party, who was a mem- 
ber of the faculty, is of such doubtful propriety that equity will not lend its 
aid to enforce it. The granting of diplomas to students in colleges ought 
not to be made the subject of private contracts with individual members of the 
faculty for personal advantage to themselves. 

2. Injunction — to prevent use of fictitious name similar to the name of com- 
plainant. A bill, by Henry Olin, who was a physician treating diseases of 
the eye and ear in the city of Chicago, charged that the defendant Bate had 
assumed the fictitious name of Andrew G. or A. Gr. Olin, and was engaged 
in practicing his profession in the same city, whose business was treating 
venereal diseases, and that in such name he advertised extensively, both in 
the newspapers and by publications and pamphlets largely circulated, by 
which means the complainant's reputation was injured, many taking him for 
the defendant. It appeared that the defendant had been practicing in the 
city under the same name before the complainant came there. The bill sought 
to enjoin the defendant from the use of the name Olin. On the hearing the 
bill was dismissed: Held, that the bill was properly dismissed, for want of 
equity. 

Appeal from the Appellate Court for the First District; — 
heard in that court on appeal from the Superior Court of 
Cook county; the Hon. S. M. Moore, Judge, presiding. 

Mr. William H. King, and Mr. Frederick W. Packard, 
for the appellant : 

The damage by diversion and threatened diversion of bus- 
iness is irreparable. The damage to reputation is a direct 
injury to appellant's business and the good will thereof; and 
the elements of certainty for the computation of the extent 
of such injury are not obtainable, from the very nature of 



54 Olin v. Bate et at. [March 

Brief for the Appellees. 

things. The only adequate remedy is by injunction. 1 Story's 
Eq. Jur. sec. 33; Wood on Law of Nuisances, 817. 

The acts of appellees, by reason of their effects in mislead- 
ing customers of appellant from resorting to him, are action- 
able, and because actionable and because calculated to mislead 
the public, equity will enjoin a repetition of those acts. 
Hookham v. Pottage, 8 Law Rep. Ch. App. Cas. 95; Riding 
v. Smith, 1 Ex. D. 91; Saxbij v. Easterbrooh, 3 C. P. D. 339; 
Western Counties Manure Co. v. Lawes Chemical Manure 
Co. L.E., 9 Ex. 218. 

A court of equity will enjoin a person from using the 
name or device previously used by another in trade, and will 
do this for two reasons : First — To protect the public against 
fraud and imposition. Second — To secure to the industrious 
trader the fruits of his skill. Upton on Trade Marks, 28, 
213; Gillott v. Easterbrooh, 47 Barb. 455; MilUngton v. Fox, 
3 Milne & Craig (Ch.) 338; 2 Story's Eq. Jur. sees. 950, 951b.; 
Jerome v. Bigelow, 66 111. 452 ; Kerr on Inj. 362, 372 ; Gil- 
bert v. Miclde, 4 Sandf. Ch. 357; Edwards v. Allonez Mining 
Co. 38 Mich. 51. 

Appellee Bate is using the name of Olin in direct breach 
of his express agreement. It was performed in good faith by 
appellant. He obtained the advantage of a diploma he 
sought and now defies appellant and his rights, and equity 
demands that he be compelled to perform his part. 1 Story's 
Eq. Jur. sees. 30, 717 a, 722 a; Kerr on Inj. (2d. ed.) 395, 
402, 407. 

Messrs. Osgood & Eiggle, and Mr. Frank Baker, for 
the appellees : 

The fact that appellees use the name of Andrew G. Olin or 
A. G. Olin in their business is no ground for equitable re- 
lief against them, because: 

1. They have not taken or used the name of appellant, 
Henry Olin. 



1881.] Olin v. Bate et at. 55 

Opinion of the Court. 

2. It is not claimed that appellant and appellees were 
engaged in the same business. Clark v. Freeman, 11 Beav. 
112. 

The alleged contract can not avail the appellant. The 
granting of medical diplomas is not the proper subject of bar- 
gain between the faculty and a candidate; besides, the con- 
tract is within the Statute of Frauds. 

Mr. Justice Scott delivered the opinion of the Court: 

"Without any discussion of the legal questions raised, but 
assuming the law to be as complainant insists it is, the facts 
proven make no case warranting equitable relief against either 
defendant under the bill exhibited against them. The bill 
was brought by Henry Olin to restrain John Bate and Ed- 
ward Osborne from using the name or title of complainant, 
or any name so like it as might mislead the public, to his 
prejudice. Complainant is a physician, and has practiced his 
profession for many years, but gives particular attention to 
diseases of the ear and eye. His office is in the city of Chi- 
cago, where he has practiced since 1870. It is alleged defend- 
ants are physicians, and are what are known as specialists, 
giving attention to chronic and sexual diseases of men and 
women; that they advertise their business in the newspapers, 
and that they have published pamphlets, or books, that tend 
to corrupt public morality. It is also charged, the business 
conducted by defendants is disreputable; and because it is 
understood and believed by many people in Chicago and 
elsewhere that complainant is the "Dr. Olin" mentioned in 
the advertisements and books published by defendants, he 
insists his professional reputation is impaired and blemished, 
and that he is, by the acts and doings of defendants, under 
the name of "Dr. Olin," brought into disrepute as a physi- 
cian. An amendment to the bill, made by leave of court, 
sets forth that, in 1875, defendant Bate applied for admission, 
as a student, to "Burnett Medical College," of which insti- 



56 Olin v. Bate et al. [March 

Opinion of the Court. 

tution complainant at the time was a member of the faculty; 
and that defendant, in consideration complainant would 
consent to his admission, agreed to abandon the fictitious 
name of Olin, and engage only thereafter in a reputable 
business. On the understanding and agreement alleged, 
complainant assisted in the graduation and granting to Bate 
a diploma, which, it is alleged, he could not have obtained 
without the consent of complainant. Answers were filed by 
both defendants, and on the hearing in the Superior Court, 
the bill was dismissed for want of equity. That decree was 
affirmed in the Appellate Court, and complainant brings the 
case to this court on appeal. 

No importance need be attached to the agreement set forth 
in the amended bill, that defendants would abandon the use 
of the fictitious name of "Olin," if complainant would con- 
sent to the admission of Bate to the medical college, and 
would assist in the graduation and granting to him a diploma, 
for the reason, a contract of the nature of the one insisted upon 
is of such doubtful propriety that equity will not lend its aid to 
enforce it. The granting of diplomas to students in colleges 
ought not to be made the subject of private contracts with 
individual members of the faculty for personal advantage to 
themselves. They should only be granted on account of the 
moral standing of the students, and on account of their pro- 
ficiency in the studies taught in such institutions. 

There can be no pretence that defendant Osborne ever 
assumed the name of "Olin." The utmost he did was to 
assist Bate in his professional duties, and that he did in his 
own name. Nor is there any proof that Bate ever assumed 
the full name of complainant. The proof shows that before 
he came to Chicago to reside he assumed the name of Andrew 
G. Olin, and since then has been known as "Andrew G. 
Olin," "A. G. Olin" and "Dr. Olin," in his profession. 
But that is not complainant's name, and never was. His 
name is " Henry Olin." Defendant has never advertised 
himself as "Henry Olin," and, so far as this record discloses, 



1881.] Olin v. Bate et al. 57 

Mr. Justice Dickey, dissenting. 

never represented to any that he was " Henry Olin." Their 
professions are totally distinct as to the diseases they profess 
to treat. Persons desiring treatment for diseases each pro- 
fesses to cure would not be likely to call upon one for the 
other, unless grossly careless. Such mistakes would be of 
rare occurrence, and it would be absurd to say that the few 
that might occur would amount to " irreparable injury" to 
either party. Whether the business defendants are pursuing 
is disreputable or not, can not be made the ground of equi- 
table relief in favor of complainant. Offences against public 
morality, where any exist, can be more appropriately redressed 
in the name of the people, against the body of whom the 
offence is. 

Complainant complains that he is subjected to embarrass- 
ment, and perhaps disgrace, on account of the conduct of 
defendants, assuming a name nearly like his own. Should 
that fact be conceded, but which does not appear in any 
proof, he has elected of his own volition to expose himself 
to it. Bate had assumed the name under which he chose to 
transact his professional business, and located in Chicago long 
before complainant came there to reside. No equitable con- 
siderations, therefore, arise in favor of complainant, for 
whatever embarrassments to which he may be subjected, if 
any, come to him from his own selection of a location in 
which to practice his own profession. 

The judgment of the Appellate Court will be affirmed. 

Judgment affirmed. 

Mr. Chief Justice Dickey: I do not concur in this 
decision. 



58 Cole v. Marple et al. [March 

Syllabus. 



Julia T. Cole 

v. 

Christian S. Marple et al. 

Filed al Ottawa November 20, 1880 — Rehearing denied March Term, 1881. 

1. Fraudulent conveyance — transfer of policy of life insurance by insol- 
vent debtor to his wife — effect of sec. 54, ch. 73, Rev. Stat. 1874, entitled "Insur- 
ance." Where an insolvent debtor holds an insurance policy upon his own 
life, he may assign the same to his wife, who may hold the proceeds of the 
policy exempt from the claims of creditors of her husband, except as to the 
amount of premiums paid by the husband within five years, the period of 
limitation, and interest thereon. Such a transaction is within the spirit of 
section 54, ch. 73, Rev. Stat. 1874, entitled "Insurance," which provides that 
a married woman may, by herself and in her own name, or in the name of 
any third person, with his assent, as her trustee, cause to be insured, for her 
sole use, the life of her husband, etc. That statute is remedial in its char- 
acter, and should be liberally construed in furtherance of the purpose of its 
enactment. 

2. Husband and wife — of the mode of transfer, as between them, of goods 
and chattels, and of choses in action — construction of the statute. Section 9, ch. 
68, Rev. Stat. 1874, entitled " Husband and Wife," providing that where hus- 
band and wife shall be living together, no transfer or conveyance of goods 
and chattels between such husband and wife shall be valid as against third 
persons, unless such transfer or conveyance be in writing, and be acknowl- 
edged and recorded, is not to be so construed as to require an assignment of a 
chose in action between husband and wife to be acknowledged and recorded. 
So, the assignment by the husband to his wife of a policy of insurance upon 
the life of the former, is not in that regard embraced in the statute. 

3. Creditor's bill — preference as the reward of diligence. Where a creditor 
files a bill to subject, property or a fund in the hands of a third person, to the 
payment of his debt, he thereby acquires a lien upon such property or fund, 
and upon recovery will be entitled to a preference in the satisfaction of his 
claim to the exclusion of other creditors. 

4. And where the bill is filed after the death of the debtor the same rule 
of preference applies. 

Writ of Error to the Appellate Court for the First 
District; — heard in that court on appeal from the Circuit Court 
of Cook county; the Hon. M. F. TULEY, Judge, presiding. 



1881.] Cole v. Marple et ah 59 

Brief for the Plaintiff in Error. 

Messrs. Rosenthal & Pence, for the plaintiff in error: 

The section of the insurance law in question is simply an 
exemption law, and such laws are always liberally construed 
for the purpose of effecting the object intended. Constitu- 
tion of 1870, art. 4, § 32; Good v. Fogg, 61 111. 451 ; Deere 
v. Chapman, 25 id. 610; Mills v. Grant, 36 Vt. 271 ; Camp- 
bell v. Adair, 45 Miss. 181; Franklin v. Coffee, 18 Texas, 
416; Thompson on Homestead and Exemption, §§ 4-7. 

Our position is this: that by the assignment of the policy 
to the wife, and by the acceptance of the notice of such 
assignment, and the consent of the company thereto, a new 
contract was created, in equity, if not in law, between the 
society and the wife; that the wife had an insurable interest 
in the life of her husband^ and it was a valid assignment by 
the husband to the wife. Dale v. Lincoln, 62 111. 22; Hunt 
v. Johnson, 44 1ST. Y. 27; Sheppard v. Sheppard, 7 Johns. 
Oh, 57; 2 Story Eq. Jur. §1374; Eev. Stat. 1874, title, 
" Husband and Wife," §§ 6-9. 

And being valid, the husband could not revoke it, and 
upon notice to the company it became a valid and binding 
contract between the insurance company and the wife, en fore- 
able in equity. City Fire Ins. Co. v. Marks, 45 111. 482 ; 
Illinois Mut. Fire v. Fox, 53 id. 158; McCord v. Noyes, 3 
Bradf. 139 ; Burroughs v. State Mut. Life Assur. Co. 97 Mass. 
359; Kingsley v. New Fnglo.nd Mut. Fire, 8 Cush. 400; 
Charter Oak Life v. Brant, 47 Mo. 419; Thompson v. Am. 
Tontine Life Ins. Co. 46 N. Y. 674. 

A subsequent ratification has the same operation in law as 
a previous authority; and the delivery of the policy in 
question, and the assignment thereof by Cole to his wife, and 
the acceptance by her, is a ratification, and has the same 
operation in law as if she had previously authorized him to 
prociu-e the policy for her sole use. Broom's Legal Maxims 
867; Cook v. Tullis, 18 Wall. 338; McCord v. Noyes, 3 
Bradf. 139. 



60 Cole v. Marple et al. [March 



Brief for the Defendant in En 



Under the statute, the creditors of the husband who is 
insolvent at the time of the transfer of the policy to his wife, 
are entitled to recover " an amount equal to the premium so 
paid, with interest," subject, however, to the Statute of 
Limitations. 

In the case at bar no priority at law was obtained, and the 
allowance of a claim against the executor or estate in the 
probate court gives no priority, but all such claims, under the 
statute, are equal in point of merit. Thompson v. Brown, 4 
Johns. Ch. 619 ; McDermott v. Strong, id. 691 ; Day v. Wash- 
burn, 24 How. 354; Birley v. Haley, 5 Gill & J. 433, 451, 
452; Robinson v. Stewart, 10 N. Y. 189; Barton v. Bryant, 2 
Ind. 189 ; McNaughton v. Lamb, id. 642 ; Buller v. Jaffray, 12 
id. 504; Beebe v. Saulter, 87 111. 523 ; Bispham Prin. Eq. sees. 
530-534; 3 Williams on Exrs. 1681; Freeman on Execu- 
tions, sec. 434; Story's Eq. Jur. sees. 546, 549. 

That part of the order of the circuit court was correct 
which referred this case to the master to take proof as to all 
claims which were to be paid out of the fund. Davidson v. 
Miller, 3 Gilm. 578; Thompson v. Brown, 4 Johns. Ch. 619; 
Derrick v. Lamar Lns. Co. 74 111. 404. 

Messrs. Higgins, Fitrber & Cothran, for the Insurance 
Company, defendant in error : 

The assignment was binding upon deceased under the 
statute, construed by the most rigid and narrow construction, 
and as it was binding upon him, it is also binding upon his 
personal representatives, his heirs and devisees. Chateau v. 
Jones, 11 111. 319; McCordv. Noyes, 3 Bradf. 139; Hanason 
v. McConhey, 1 Md. Ch. Dec. 34; Dorsey v. Smithson, 6 H. 
& J. 61 ; Osborn v. Moss, 7 Johns. 161; 1 Williams on Exrs. 
784, note p. 

A creditor can only make a demand by filing his bill, and 
until such bill is filed, the debtor has the right to pay the 
assignee and to deal with him as the real owner. 



1881.] Cole v. Marple et al. 61 

Brief for the Defendant Marple. 

The proviso of the statute of 1874, sec. 9, relating to hus- 
band and wife, limiting the right to transfer goods and chat- 
tels as between each other, does not apply to the sale of bills 
of exchange, promissory notes or mere choses in action. 

Mr. George Burry, for the defendant Marple: 

1. Against creditors, a voluntary conveyance by an insol- 
vent is void. Choteau v. Jones, 11 111. 318; Bay v. Cook, 31 
id. 336; Moritz v. Hoffman, 35 id. 553. 

2. As to what property can be reached by a creditor's bill 
and what conveyances are fraudulent, counsel cited Hayward 
v. Hoffman, 4 Johns. Ch. 450; Hadden v. Spader, 20 id. 454 
Edmeston v. Lyde, 1 Paige, 637; Tarbell v. Griggs, 3 id. 208 
Bennett v. McGuire, 58 Barb. 625; Gage v. Smith, 79 111. 223 
2 Kent's Com. 442; Eev. Stat. 1874, chap. 22, sec. 49. 

A policy of insurance, even before the death of the insured, 
is property, within the meaning of the statutes on frauds and 
on creditor's bill. Dolby v. India, eta., Assurance Co. 15 
C. B. 365; St. John v. American Mutual Co. 13 N. Y. 31; 
Huston v. Merrifield, 51 Ind. 24; Continental Insurance Co. 
v. Palmer, 42 Conn. 60; Palmer v. Merrill, 6 Cush. 286; 
Anthracite Ins. Co. v. Sears, 109 Mass. 383; Stolcoe v. Cowan, 
29 Beav. 637; Stoolce v. Stoolce, 35 id. 398; Petty v. Wilson, 
L. E., 4 Ch. 574; May on Fraud. Convey. 24, 51; Davis v. 
Worden, 13 Gray, 305; Moody v. Gay, 15 id. 457; Crompton 
v.Anthony, 13 Allen, 33; Barry v. Abbott, 100 Mass. 396; 
Briggsv. McCullough, 36 Cal. 542. 

The assignment of the policy of insurance was fraudulent 
and void as against creditors, and will be set aside by a court 
of equity. Stolcoe v. Cowan, 29 Beav. 637; Elliott's Appeal, 
50 Pa. St. 75; Stokes v. Coffey, 8 Bush, 534; Skarf v. Soulby, 
1 Mac. & G. 364; Keese River Co. v. Atwell, L. E., 7 Eq. 347; 
Briggs v. McCullough, 36 Cal. 542; Jamison v. King, 50 id. 
132 ; Holt v. Everett, 2 Ch. D. 266. 

3. The assignment of the policy by Cole to his wife was 
not valid as against the rights and interests of creditors, be- 



62 Cole v. Marple et at. [March 

Opinion of the Court. 

cause not in" compliance with the statute. Pev. Stat. 1874, 
chap. 68, sec. 9. 

4. A fraudulent grantee of a life insurance policy is liable 
to creditors for all the moneys received on the policy, and 
not merely for the premiums. Stokoe v. Cowan, 29 Beav. 
637; Elliott's Appeal, 50 Pa. St. 75 ; Stokes v. Coffey, 8 Bush, 
534, and cases cited above; Bump on F. C. 593. 

5. Marple is entitled to have his claim paid first out of 
the moneys recovered. Rappleye v. International Bank, 93 
111. 396; Lyon v. Bobbins, 46 id. 276; Smith v. Idnd, 29 id. 
30; Weed v. Pierce, 9 Cow. 728; Edmeston v. Lyde, 1 Paige, 
637; Coming v. White, 2 id. 567; Albany Bank v. Sehermer- 
horn, Clarke, 278; McCahnont v. Laivrence, 1 Blatch. 232. 

Mr. Justice Craig delivered the opinion of the Court: 

This was a creditor's bill, brought by Christian S. Marple 
against Julia T. Cole, widow of Jerah D. Cole, deceased, 
the Equitable Life Assurance Society, and George A. 
Seaverns, executor of the estate of J. D. Cole, deceased, to 
reach the proceeds of a $10,000 life insurance policy, which 
was issued to Cole on his life by the Equitable Society, and 
by him assigned to Julia T. Cole, his wife, a short time be- 
fore his death. The policy was issued July 17, 1868, payable 
in twenty years, or, in case of prior death, sixty days after 
notice; the premiums were to be paid in twenty annual in- 
stallments of $501.10. Cole paid the premiums as they be- 
came due, and died August 31, 1876. Before his death, and 
on the 30th day of August, he assigned the policy to his 
wife, and immediately gave notice of the assignment to the 
society, and the society consented to the assignment. 

The estate of Cole is insolvent, and this bill was brought 
by a creditor, who had probated his claim against the estate. 
The court, on the hearing, found that the assignment of the 
policy from Cole to his wife was fraudulent as against com- 
plainant and the other creditors of Cole, and rendered a 
decree that Julia T. Cole pay into court the full amount re- 



1881.] Cole v. Marple et al. 63 

Or>iruon of the Court. 

ceived on the policy from the Equitable Society/ to-wit: 
$10,633. 22, with interest at 6 per cent from the 26th day of 
November, 1868, the time when she received the money. 

The proposition is not controverted, that a voluntary con- 
veyance of property by a person who is insolvent is voidable, 
and may be set aside by creditors. But while this may be 
regarded as a general rule, which may be invoked by a cred- 
itor when his debtor has attempted to transfer his property 
beyond the reach of legal process, yet the question presented 
by this record is, whether the assignment of the policy made 
by Cole to his wife is to be regarded as falling within that 
general rule, or is it a transaction which is authorized by the 
statute. 

Section 54, chapter 73, Revised Statutes 1874, page 607, 
which was enacted in 1869, declares: "It shall be lawful 
for any married woman, by herself and in her own name, or 
in the name of any third person, with his assent as her trus- 
tee, to cause to be insured, for her sole use, the life of her 
husband for any definite period, or for the term of his natural 
life, and in case of her surviving such period or term, the 
sum or net amount of the insurance becoming due and paya- 
ble by the terms of the insurance, shall be payable to her, to 
and for her own use, free from the claims of the representa- 
tives of the husband, or of any of his creditors: Provided, 
however, that if the premium of such policy is paid by any 
person with intent to defraud his creditors, an amount equal 
to the premium so paid, with interest thereon, shall inure to 
the benefit of said creditors, subject, however to the Statute 
of Limitations. The amount of the insurance may be made 
payable, in case of the death of the wife before the period at 
which it becomes due, to his, her or their children, for their 
use, as shall be provided in the policy of insurance, and their 
guardian, if under age." 

Here is a statute which empowers a wife, in her own name, 
or in the name of a third party, to obtain a policy of insur- 
ance on the life of her husband, and, in case of his death, 



64 Cole v. M apple et al. [March 

Opinion of the Court. 

the amount of the insurance shall go to the wife free from 
the claims of the husband's creditors. There is but one sav- 
ing provision in the statute in favor of creditors, and that is 
where a person pays the premium on the policy with the in- 
tent to defraud his creditors, an amount equal to the premium 
so paid, and not barred by the Statute of Limitations, may be 
recovered. The defendant in the bill, in her answer, alleges 
that she caused the life of Jerah D. Cole to be insured in the 
Equitable Society, and that the insurance was for her sole 
use. She denies the right of complainant to any portion of 
the money paid her by the insurance society, and sets up the 
Statute of Limitations as a bar to the recovery of an amount 
equal to the premium paid by her husband on the policy 
prior to July 17, 1874. 'The question here, is, not whether 
defendant falls within the letter of the statute, but it is 
whether she substantially complied with the act and falls 
within its spirit. 

Equity, as a general rule, disregards the form, but looks 
to the substance of a transaction. The constitution of 1870 
declares, that " the General Assembly shall pass liberal 
homestead and exemption laws." Prior, however, to the 
adoption of the constitution, in Deere v. Chapman, 25 111. 
610, it was held that the Homestead act was a remedial act, 
and should receive a liberal construction. It was there said : 
"Though this act may be said to be in derogation of the 
common law, and an innovation upon all former relations 
between creditors and debtors, giving to the latter new rights 
and immunities, yet it does not follow that it should not re- 
ceive a construction so liberal as to advance the object 
contemplated by the legislature in passingthe act." In Good 
v. Fogg, 61 111. 451, where the acts of 1843 and 1861, exempt- 
ing certain personal property from levy and sale, came before 
the court for construction, it was held that a person entitled 
to the benefit of the exemptions may hold under both statutes 
a house worth not exceeding $160; that the acts are not to 
receive a strict construction, and that, according to their 



1881.] Cole v. Marple et aL 65 

Opinion of the Court. 

spirit, a person thus situated may in his claim unite both 
laws. Now, while the act which allows the wife to hold a 
policy of insurance on the life of her husband, and protects 
her in the proceeds of the policy as against the creditors of 
her husband, is not strictly an exemption law, yet it is of that 
nature, and should be construed with the same liberality. 

But we are not without authority on this question. In 
Charter Oah Life Ins. Co. v. Brent, 47 Mo. 419, where a 
statute similar to our own was under consideration, it is said: 
"The statute was founded on charity, and intended to sub- 
serve a beneficent object, and in a case falling within it, I 
should be disposed to give it the most favorable construction 
to carry out its humane principle." 

Do the facts presented by this record establish a case 
within the spirit of the statute ? Cole held a policy payable 
to him, his executors, administrators and assigns. He as- 
signed the policy to defendant, his wife. On the same day 
the insurance company was notified of the assignment. It 
accepted the n.otice and consented to the assignment. In 
The City Fire Ins. Co. v. Mark, 45 111. 482, where a policy 
had been taken out in the name of Morris, on a stock of 
goods, who subsequently sold the goods to Myers, and, with 
the consent of the company, assigned to him the policy, it 
was held, in substance, though not in form, a new insurance 
was granted to Myers. 

In Burroughs v. State Mut. Life Assur. Co. 97 Mass. 359, 
where a policy w r as payable to the insured and his assigns, 
and duly assigned with the consent of the company, it was 
held that the assignment transferred the legal title to the 
assignee with right to sue in his own name. 

Whether under the assignment, in this case, a suit might 
have been maintained in the name of Mrs. Cole, is a question 
which does not properly arise, and it will not be necessary to 
determine it. But, when the assignment was made with the 
consent of the company, as was held in the Meehs case, in 
substance and effect a new insurance was granted to Mrs. v 
6—98 III. 



66 Cole v. Marple et dl. [March 



Opinion of the Court. 



Cole. After the assignment was made, and assented to by the 
company, it could not be repudiated by Cole or the com- 
pany, but under the assignment the policy was held by Mrs. 
Cole for her sole use and benefit ; and, although the transac- 
tion may hot have assumed the literal form required by the 
statute, yet, the substantial requirements of the statute were 
followed, and, under a statute of this character, that is all 
that can be required. At the time the assignment was made, 
had Mrs. Cole taken out a new policy on her husband's life, 
in her name, or that of a trustee, it is not denied that she 
would have been able to hold the proceeds regardless of 
creditors of the husband. What is the difference in principle 
between taking out a new policy and having one already in 
existence assigned with the consent of the company? We 
perceive no substantial difference, and, hence, we must hold 
that Mrs. Cole, under the statute, had a clear right, with the 
consent of the company, to accept an assignment of the 
policy. 

But, under the statute, Cole being insolvent, all pre- 
miums paid by him on the policy within five years next 
before this action was brought, with interest thereon from 
the date of payment, could be recovered by the creditors. 
The action was commenced in October, 1878. The premiums 
paid in July, 1873, and all paid before that time, would be 
barred by the statute, but the complainant was entitled to 
recover the premium of $501.60 paid July 17, 1874, and 
§501.60 paid July 17, 1875, and $501.60 paid July 17, 1876, 
with 6 per cent interest on each of said amounts from the 
date of payment. 

The position that the assignment of the policy can not 
be sustained, because it was not acknowledged and recorded, 
as the transfer of goods and chattels is required to be 
under sec. 9, chap. 68 , Rev. Stat. 1874, page 577, we 
do not regard as tenable. While the words goods and chat- 
tels might be held ordinarily to mean all personal property 
of every description, yet ; a moment's reflection must satisfy 



1881.] Cole v. Marple et al. 67 

Opinion of the Court. 

anyone that it was never intended that a chose in action 
should be embraced within its provisions. Where a husband 
and wife are residing together, there is manifest wisdom in 
requiring a transfer of goods and chattels, from one to the 
other, to be in writing and acknowledged and recorded, so 
that all may know to whom the property belongs, and one 
may be prevented from setting up a secret transfer of the 
property, should it be seized by execution as the property of 
the other. But the law could never have been intended to 
apply to a chose in action. It would be absurd in the 
extreme' to require a husband and wife, on the assignment of 
a promissory note, to go before a justice of the peace and 
have the assignment acknowledged and then have it recorded. 
The statute was never framed for such a ridiculous purpose. 

One cross-erroivremains to be considered. Is complainant 
entitled to have his claim paid first out of the money received ? 
If Cole was living and the complainant had filed a bill 
and discovered property, there would be no question in 
regard to his right to be first paid out of any money recov- 
ered > as a reward for his diligence. Lyons v. Robbins, 46 111. 
276; Rappleye v. International Bank, 93 id. 396. 

Where property has been fraudulently conveyed by a per- 
son who afterwards dies, such property is not assets in the 
hands of the administrator for general distribution among all 
the creditors. The administrator can not file a bill and 
reach such property, but a creditor can ; and when he obtains 
a lien by filing a bill, and, in the end, recovers the property, 
he is justly entitled to be rewarded for his superior diligence, 
and receive the payment of his debt before other creditors can 
come in. We do not regard this, however, a new question in 
this court. 

In Ballantine v. Beall, 3 Scam. 204, where a creditor had 
filed a bill to reach property which was held by one in trust 
for an estate, the complainant having a claim against the 
estate, it was held that the complainant, by the institution of 
his suit, secured a lien upon the land for the satisfaction of 



68 Field et al. v. Oppexstein et al. [N 



ov 



Syllabus. 



his debt, and if the adrainstrator was entitled to any portion 
of the proceeds, it would only be the residue after paying 
complainant's debt. See also Alexander v. Tarns, 13 111. 221, 
and United States Banh v. Burh, 4 Blackf. 141. 

The judgment of the Appellate Court will be reversed, and 
the cause remanded for further proceedings consistent with 
this opinion. Judgment reversed, 

Mr. Justice Sheldon, dissenting: The policy was Cole's 
own property, and he assigned it, without consideration, to his 
wife while he was in extremis and only about twelve hours 
before he died. The assignment of it was a gift of the prop- 
erty to his wife, and void as against creditors. I do not 
regard the statute as applying to the case. 



Marshall Field et al. 

v. 

Abraham Oppenstein et al. 

Filed at Ottawa November 17, 1880. 

1. Chancery — relief refused when the proof is not satisfactory. On creditor's 
bill to reach assets alleged to be in a party's hands to pay debts which such 
party claimed he had paid to the extent, of all coming to him, denying the 
receipt of the greater amount charged, when the testimony was so irrecon- 
cilably conflicting as to make it impossible to arrive at the truth of the trans- 
action, a decree dismissing the bill was affirmed. 

2. Costs — in chancery — discretionary. Under the statute, costs in chancery 
are in the discretion of the court trying the cause, and when that discretion 
is not abused the ruling below will not be reviewed. 

Appeal from the Appellate Court for the First District; — 
heard in that court on error to the Superior Court of 
Cook county; the Hon. S. M. Moore, Judge, presiding. 

Mr. William B. Bradford, for the appellants. 

Mr. Adolph Moses, for the appellees. 



1880.] Field et ah v. Oppenstein et al. 69 

Opinion of the Court. 

Mr. Justice Scott delivered the opinion of the Court: 

The original bill in this case was brought by Field, Leiter 
& Co., against Abraham Oppenstein and a number of persons 
composing the firm of M. Harris & Bros. It is a creditors' 
bill, and alleges that complainants obtained a judgment 
against Oppenstein, the principal defendant, on the 9th day 
of May, 1876, for the sum of $622.56; that execution was 
duly issued on such judgment, and returned "no property 
found," and that the same remains in full force and unsatis- 
fied ; that the principal defendant being largely indebted to 
divers persons, did, on or about the month of October, 1873, 
give to and place in the hands of his co-defendants, Harris 
Bros., a large amount of personal property, consisting of dry 
goods, trimmings, dress goods, and other goods, of the value 
of $4000; promissory notes and bills of exchange amounting 
to the sum of $1700; cash to the amount of $3000; making 
in all, the sum of $8700; all of which was placed in the 
hands of his co-defendants by Oppenstein, to be by them 
distributed among his creditors, among whom were complain- 
ants. It is further alleged that Harris Bros., instead of pay- 
ing the creditors of Oppenstein, fraudulently kept such 
personal property, and appropriated the same to their own 
use, and now hold the same, and the proceeds thereof, against 
equity and good conscience, and against the rights of com- 
plainants. Other matters as to the fraudulent acts of Oppen- 
stein are set forth in the bill ; but as no proof was offered as 
to them, it will not be necessary to notice such allegations. 

On petition filed by William B. Bradford, a judgment cred- 
itor of Oppenstein in the sum of $1164.90, he was permitted 
by the court to become complainant, as was also Benjamin 
F. Allen, another judgment creditor of Oppenstein in the 
sum of $1867.10. 

Answers were filed by the members of the firm of Harris 
Bros., denying all the allegations of the bill charging them 
with having effects of Oppenstein in their hands unaccounted 



70 Field et al. v. Oppenstein et al. [!N 



ov. 



Opinion of the Court. 



for; but the answer of Oppenstein admits most of the allega- 
tions of the bill, and particularly those in respect to Harris 
Bros. On the hearing in the Superior Court the bill was 
dismissed for want of equity, and that decree was affirmed in 
the Appellate Court, and now complainants bring the case to 
this court on appeal. 

The evidence contained in this record has been exam- 
ined with that care the importance of the case demands, 
and no reason is perceived for disturbing the decrees of the 
lower courts through which the case has come to this court. 
Oppenstein failed in business in the fall of 1873, and it 
was found he was indebted to sundry persons in a sum of 
about $14,000. Some understanding was had with most, if 
not all, of his creditors, by which they agreed to take a cer- 
tain per cent in full satisfaction of their respective claims. 
That settlement was effected in consideration that Harris Bros, 
would indorse the paper of Oppenstein for a certain per cent 
of each creditor's claim, which they did, and afterwards paid. 
It was to secure Harris Bros., as in dorse rs on his composition 
paper, that Oppenstein placed effects in their hands. That 
Oppenstein placed some amount with [Harris Bros, to secure 
them as his indorsers, and that Harris Bros, paid out an 
amount, as indorsers for Oppenstein, to his creditors, stands 
admitted; but the controversy hinges upon the amounts so 
paid to Harris Bros., and by them paid out to the creditors 
of the failing debtor. 

Oppenstein was the principal witness offered by complain- 
ants to sustain the bill. His testimony is that he placed in 
the hands of Harris Bros, goods and money, as he expresses 
it, "in the neighborhood of $7000 or $8000"— enough, he 
says, to pay fifty per cent of his whole indebtedness, and 
after deducting what they have paid out to his creditors, 
which he states was "in the neighborhood of $2500," there 
now remains in their possession between $4000 and $5000, 
of which his creditors ought to have the benefit. On the 



1880.] Field et al. v. Oppenstein et al. 71 

Opinion of the Court. 

other hand, his co-defendants deny most positively that 
they ever received any merchandize from Oppenstein, and 
as positively state that they have paid out to his creditors 
all they ever received from him in money or other effects. 
They also give in evidence a release executed by Oppenstein, 
dated before this bill was filed, in which he releases "them 
from any and all claims, demands, and debts, of whatsoever 
nature, up to date." 

There is some testimony, from disinterested witnesses, that 
tends, in a measure, to strengthen the testimony given by the 
respective parties; but, after all, the testimony is so irrecon- 
cilably conflicting it is impossible to arrive at the truth of 
the transaction. A number of witnesses state that Oppen- 
stein's reputation for truth is so bad they would not believe 
him under oath. His account of his dealings with Harris 
Bros, is in many respects most unreasonable, and not at all 
calculated to impress the mind with its truthfulness. But, 
on the other hand, the explanations given by such mem- 
bers of the firm of Harris Bros, as were in position to know 
most concerning the transaction, is very far from being satis- 
factory. Their own version is, the business was conducted 
in a loose and careless manner, and no accurate accounts were 
kept by them. Neither party seems to have kept any books 
or memoranda relating to the business. Everything rested 
on the memory of the parties interested. After mature con- 
sideration, we think the decrees of the Superior and Appellate 
Courts are right. The evidence is too unsatisfactory to war- 
rant any decree in favor of complainants. 

Cross-errors were assigned in the Appellate Court that the 
Superior Court had refused to allow Harris Bros, their costs, 
and cross-errors as to that decision are insisted upon in this 
court. Under our statute, costs in chancery are in the dis- 
cretion of the court trying the cause. No abuse of that dis- 
cretion is apparent in this case. The defendants complaining 
of the decree in this respect are not altogether blameless in 



72 Stettauer et al. v. White. [March 

Syllabus. 

the transaction, and under the circumstances the Superior 
Court could with great propriety refuse to allow them costs. 
The judgment of the Appellate Court will be affirmed. 

Judgment affirmed. 

Mr. Justice Craig took no part in the decision of this case. 



Charles Stettauer et al. 

v. 

Peter White. 

Filed al Ottawa November 20, 1880 — Rehearing denied March. Term, 1881. 

1. Evidence — of party's books of account. The statute does not provide for 
the admission of a party's books of account to prove the items therein charged 
where the entries have been made by a disinterested living and resident per- 
son, but such witness must be called to prove the account. 

2. At common law, when the clerk who made the entries has no knowledge 
of the correctness of the same, but made them as the items were furnished by 
another, it was essential that the person furnishing the items should testify 
to their correctness, or that satisfactory proof thereof, such as the transactions 
are reasonably susceptible of from other sources, should be produced. 

3. In an action against a defendant for a breach of a contract to buy an 
account of the plaintiff on a corporation, the plaintiff is bound to prove his 
account by proper and legitimate evidence, the same as in a suit upon the 
account itself. In such suit the testimony relied on to render the plaintiff's 
books competent was that of the bookkeeper, and the amount claimed appeared 
upon the ledger, the entries being in his handwriting, and that of a witness 
who testified that the sales-book produced contained the original entries, and 
that the entries were in his handwriting, made in the ordinary course of busi- 
ness, of goods that were reported as being sold. The entries showed the 
amount as claimed and as appearing upon the ledger. He also testified that 
the goods were brought into the packing room and there assorted by a man 
employed for that purpose, who called them off to the witness as entry clerk, 
who made the entries of them in the book as they appeared, and that the 
entries were then compared with the goods, when the goods were packed and 
shipped, but that he had no personal knowledge of the sale or delivery of 
the goods. One of the plaintiffs testified that the original entries of goods 



1881.] Stettauek et at. v. White. 73 

Briefs of Counsel. 

sold were made in the sales-book produced, and their books were fairly and 
honestly kept, in the usual course of business. Evidence was also offered of 
the carrier's shipping receipt for the transportation of the goods: Held, that 
the books were not admissible under this proof. 

Appeal from the Appellate Court for the First District; — 
heard in that court on appeal from the Superior Court of 
Cook county; the Hon. John A. Jameson, Judge, pre- 
siding. 

Mr. Charles Hitchcock, for the appellants: 

The testimony derived from the plaintiffs' books and the 
entries in the books themselves, were competent evidence and 
ought not to have been excluded from the jury by instruc- 
tion. Rev. Stat. 1877, p. 476, §3. 

This statute was undoubtedly intended to regulate the 
whole subject of the admissibility of books of account, for it 
is inconceivable that the legislature intended to apply one 
rule to cases in which the books were kept by the party him- 
self, or a deceased or non-resident witness, and another and 
different rule, with additional requisites, to a case in which 
the books were kept by a living person who duly authenti- 
cates them. In the case of the Presbyterian Church v. Emer- 
son, 66 111. 269, it was expressly held that the statute is a 
repeal of the common law rule as to the admissibility of an 
account book. 

If it be doubtful whether the statute applies to a case in 
which the entries are made by a living and resident witness, 
then it is submitted that they were admissible at common law. 
1 Greenlf. Ev. §§ 115-117; Boyer v. Sweet, 3 Scam. 120. 

Messrs. Stiles & Lewis, and Mr. F. A. Johnson, for 
the appellee : 

The statute of 1867, which permitted parties to testify in 
their own behalf, abolished the necessity which led to the 
adoption of the rule laid down in Boyer v. Siveet. Probably 
if no' statute had then been enacted concerning books of 
account, they would not have been admissible afterward, 



74 Stettauer et al. v. "White. [March 

Brief for the Appellee. 

except in cases where other private memoranda are admissi- 
ble. Where interested persons are competent witnesses, such 
memoranda would only be admissible in one of the two fol- 
lowing cases : 

1. Where the witness has no recollection of the truth of 
the facts stated in the memoranda, but swears that they were 
made by him in the ordinary course of business, at or about 
the time of the events recorded, and that he should not have 
made them if they had not been true and within his per- 
sonal knowledge at the time. 1 Greenleaf on Evidence, 
§116; 1 Smith's Leading Cases, *39S et seq. 

2. Where the person who made the memoranda is dead, 
and it is proved that they are in his handwriting and were 
made by him in the usual course of business. 1 Smith's Lead- 
ing Cases, pp. *398-*407. 

Such, we apprehend, would be the rules of law in the 
absence of the statute of 1867 concerning books of account. 
Under these rules plaintiffs' books of account were not 
admissible under the proof in the record. 

Books of account are only admissible, under the statute, 
when the same are made by a party or interested person, or by 
a person who has since died, or by a disinterested person who 
is a non-resident of the State at the time of the trial. The 
plaintiffs' books of account do not fall under either of these 
heads. Where the entries are made, as in this case, by living 
witnesses, who are within the State at the time of the trial, they 
are only admissible when they are the best evidence and are 
authenticated by the parties who made them, who must be 
able to swear that the entries were made in the usual course 
of business; and that at the time they made them, they had 
personal knowledge that they were true, and that they are 
unable to recollect the transactions at the time of the trial. 
1 Greenleaf Ev. § 115 et seq.; 1 Smith's Leading Cases, 398 
et seq. 

Admitting that the statute applies to cases when the books 
are kept by a living person who is present at the time of the 



1881.] Stettauer et al. v. White. 



7 



Opinion of the Court. 



trial, and who is not a party or interested person, then the 
proper preliminary proof was not made. See, also, Paine v. 
Sherwood, 21 Minn. 225; White v. Wilkinson, 12 La. Ann. 359 
Chaffee v. TJ. S. 18 "Wall. 516 ; Gould v. Conway, 59 Barb. 355 
Kent v. Garvin, 1 Gray, 148; Thomas v. Price, 30 Md. 483 
Luce v. Doane, 38 Me. 478. 

Per Curiam: This is an appeal from the Appellate Court 
for the First District, and the only questions of law which 
are presented for our consideration arise upon three instruc- 
tions which were given for the defendant on the trial of the 
case in the Superior Court of Cook county. 

The action was upon an alleged agreement for the purchase 
from the plaintiffs of a certain demand in their favor against 
the Michigan Iron Company for goods sold and delivered. 

The objection taken to two of the instructions is, that there 
is nothing in the evidence upon which one of them can be 
fairly based, and that they were calculated to mislead the 
jury. 

Upon an examination of the evidence and considering the 
instructions, we fail to perceive any sufficient ground of ob- 
jection to them in the respects named, or otherwise. 

There is more serious question upon the other instruction, 
which was as follows: 

"2. The jury are instructed, that in order that the plain- 
tiffs may recover in this case, they must prove to the satisfac- 
tion of the jury, that at the time the alleged contract was 
made, they had a claim against the said Michigan Iron 
Company for the amount stated in the declaration, and that 
in determining whether such proof has been made, they must 
exclude from their consideration all testimony relating to 
said claim, derived from the books of said plaintiffs, or from 
hearsay, and also entries in the books themselves, the proof 
necessary to make such books of account competent evidence 
not having been made in this case." 



76 Stettauer et al. v. White. [March 

Opinion of the Court. 

The statute in relation to books of parties in this State is 
as follows : 

"Where, in any civil action, suit or proceeding, the claim 
or defence is founded on a book account, any party or inter- 
ested person may testify to his account book and the items 
therein contained; that the same is a book of original en- 
tries, and that the entries therein were made by himself, and 
are true and just; or that the same were made by a deceased 
person, or by a disinterested person, a non-resident of the 
State at the time of the trial, and were made by such de- 
ceased or non-resident person in the usual course of trade, 
and of his duty or employment to the party so testifying; 
and thereupon, the said account book and entries shall be 
admitted as evidence in the cause." Rev. Stat. 1874, p. 489, 
sec. 3. 

The testimony relied upon to render the books competent 
was that of the bookkeeper of the plaintiffs, producing the 
books of the firm, and that the amount as claimed appeared 
upon the ledger, the entries being in his handwriting; that 
of a witness who testified that the sales-book produced con- 
tained the original entries of the transaction with the Mich- 
igan Iron Company, that the entries were in the handwriting 
of the witness, made in the ordinary course of business, of 
goods that are reported as having been sold — the entries 
showed the amount as claimed, and as appearing upon the 
ledger — that the entries were made in the regular course 
of business; that, according to the [course of business, the 
goods were brought into the packing room and there assorted 
by a man employed for that purpose, who called them off 
to the witness as entry clerk, who made the entries of them 
in the books as they appear; then the entries and the goods 
are compared; then the goods are packed and shipped in 
the order of business — that he had no personal knowledge 
of the sale or delivery of the goods. One of the plaintiffs 
testified that the original entries of goods sold by the plaintiffs 
are made in the sales-books produced ; that these books of 



1881.] Stettauer et al. v. White. 77 



Opinion of the Court. 



the plaintiffs have been fairly and honestly kept, in the course 
of the business of said firm. 

Evidence was offered of the carrier's shipping receipt for the 
transportation of the goods, and as evidence which is claimed 
as tending to show the receipt by the Michigan Iron Com- 
pany of a portion of the goods. The defendant himself stated, 
on his examination as a witness in the case, that he never ad- 
mitted the correctness of the debt of the Michigan Iron Com- 
pany to the plaintiffs, but he told one of the plaintiffs that 
the Michigan Iron Company disputed its correctness — disputed 
over one-half of the goods. 

It is contended that the books were admissible under the 
statute. 

But the statute does not seem to provide for the case where 
the entries have been made by a disinterested living and resi- 
dent person, as here. We think the statute does not apply. 

It is then, in that case, insisted the books were admissible 
at common law. But at common law, where the clerk who 
made the entries had no knowledge of the correctness of the 
entries, but made them as the items were furnished by another, 
it was essential that the party furnishing the items should tes- 
tify to their correctness, or that satisfactory proof thereof, 
(such as the transactions were reasonably susceptible of), from 
other sources should be produced. Such evidence was not 
here produced. 

On no ground do the majority of the court think the books 
were admissible under the preliminary proofs made. The fol- 
low ing cases are identical in principle, and are conclusive 
against appellants. Greeny. Caulk, 16 Md. 573; Thomas, Gar- 
nishee, etc. v. Price, 30 id. 483; Kent v. Garvin, 1 Gray, 148; 
White v. Wilkinson, 12 La. Ann. 359. 

The judgment of the Appellate Court is affirmed. 

Judgment affirmed. 



78 Baird et al. v. Jackson. [March 

Syllabus. 



Lyman Baird et al. 

v. 
Francis Jackson. 

Filed at Ottawa February 3, 1881 — Rehearing denied March Term, 1881. 

1. Certificate — of acknowledgment — of evidence to overcome the effect thereof. 
Nothing short of clear and satisfactory proof, convincing beyond a rea- 
sonable doubt, can overcome the proof of the execution of a deed, afforded 
by the certificate of its acknowledgment. The testimony of the grantor alone 
is not sufficient. 

2. Evidence — as to whether a deed was a forgery. The acts and conduct of 
a party claiming a deed purporting to have been made by him is a forgery, 
before he had knowledge of said deed, can have no bearing on the question as 
to its genuineness, and can not be used to contradict his testimony that the 
deed is not his. 

3. A deed purporting to have been executed by two persons — brother and 
sister — to another brother, and purporting to convey the interest of the gran- 
tors in premises of which the three were tenants in common, was claimed by 
both the grantors to be a forgery. It was considered that proof that the pre- 
tended deed was a forgery as to one of the grantors, would raise a strong 
presumption that it was also a forgery as to the other. The joint execution 
of the deed in the form it was made, was essential to its validity, — so proof 
of the forgery as to one, was of the res gestce, and tended to shed light on the 
whole transaction. 

4. Contribution — as between tenants in common, for improvements, etc. It 
is a familiar and elementary rule, that where a tenant in common makes 
necessary repairs on the property, necessarily purchases an incumbrance or 
outstanding title, or improves the property with the express or implied 
assent of his co-tenants, these all inure to the benefit of all the tenants, 
and the law requires each to contribute to the expense in proportion to his 
interest in the property. 

5. Same — as to forged deed purporting to convey the interest of one tenant 
in common to another — estoppel. Where one tenant in common had given his 
express assent to the erection of buildings by his co-tenant upon premises 
held by them, even though there then existed what purported to be a convey- 
ance from the tenant so assenting, to his co-tenant, of the interest of the for- 
mer in the premises, of which he at the time had no knowledge, and which 
proved to be a forgery, it was held, the tenant so assenting to the making of 
the improvements, having held his co-tenant — the grantee in the forged deed 
— out to the world as the sole owner, by superintending the construction of 



1881.] Baird et aL v. Jackson. 79 

Brief for the Appellants. 

the buildings, and by other acts, will be estopped to claim that his interest in 
the property shall not be liable for its proportionate share of the cost of the 
improvements. 

6. Incumbrancer — improvements by owner. All improvements placed on 
real estate by the owner while it is incumbered inures to the benefit of the 
holder of the incumbrance, and their value can not be claimed against the lien 
when they savor of the realty, but are subject to it. 

7. Same — as to improvements by one tenant in common with the assent of his co- 
tenant. So, where one tenant in common, by the express assent of his co- 
tenant, places valuable buildings on the common property, and thereby 
acquires a lien on his co-tenant's interest for a proportionate share of the cost 
of the improvement, it will be an accession to his interest, which will be sub- 
ject to a deed of trust given by him on the property, and it will pass to the 
trustee to the same extent, in the same manner, and for the same reasons that 
the improvements became liable to the lien of the trust deed. 

8. Same — where there is a lien upon two funds — when one of them must be first 
exhausted. It is a rule of equity, that where a creditor has a lien upon two 
funds, in one of which the debtor has no interest, but has in the other, the 
debtor has a right to compel the creditor to exhaust the fund in which the 
former has no interest before resorting to that in which he has an interest. 
This is subject, however, to the limitation, that if other persons have a supe- 
rior equity in the fund to which the debtor has no claim, then the rule has 
no application. 

9. Chancery — bill — whether multifarious. As the statute contemplates that 
more than one tract of land, and even separate tracts in different counties, may 
be embraced in one bill for partition, a bill seeking partition of two distinct 
parcels of land held by different claimants, and to have forged deeds made in 
his name for the same set aside as clouds upon his title, is not multifarious, 
but the claimants of one lot of the land should only be taxed with one-half 
the costs in such a case. 

10. Courts of chancery will always exercise a sound discretion in determin- 
ing whether the subject matters of a bill are properly joined or not, and 
whether the parties, plaintiffs or defendants, are properly joined, each par- 
ticular case, to some extent, depending upon its own facts. 

Appeal from the Circuit Court of Cook county. 

Messrs. Gotjdy & Chandler, for the appellants Baird, 
Chandler and Carrolls: 

1. The deed of March 25, 1868, from Francis to Obediah 
Jackson is not a forgery. The complainant's testimony lacks 



SO Baird et al. v. Jackson. [March 

Brief for the Appellants. 

corroboration, and is entitled to very little weight, and is 
insufficient, of itself, to produce the legal conclusion the deed 
was void. The law upon this question is settled in Illinois 
beyond any controversy. Lichmon v. Harding, 65 111. 505; 
Canal and Dock Company v. Russell, 68 id. 430; Kerr v. 
Russell, 69 id. 669; Russell v. Baptist T. U. 73 id. 
341; Hashins v. Forsythe, 11 Leigh, 294; Williams v. Hob- 
son, 6 Ohio St. 510; Montgomery v. Hobson, Meigs, 437. 

The acts of the complainant in superintending the work on 
the buildings, and, after their completion, writing out leases 
for the property in Obediah's name, all tend to show the 
deed was not a forgery. 

2. The complainant is not entitled to have this deed de- 
clared void, as against appellants, for these reasons : 

First. — There is an equitable estoppel against him from 
his acts and conduct, holding his brother out as the sole 
owner of the property. McNiel v. Tenth National Bank, 
46 X. Y. 329. 

Second — He has been guilty of such laches in asserting his 
claim as to bar him of equitable relief. The deed in question 
had been upon the record for more than eight years before 
the bill was filed. If he was not chargeable with notice before, 
he had such notice or its equivalent in August, 1872, and he 
failed to file any bill until January, 1877, a period of four 
and a half years. During this interval, the incumbrance of 
$40,000 to the insurance company, and that for $51,000 to the 
Carrol Is, were placed on the property. As against these 
incumbrances, the complainant has been guilty of such delay 
as to prevent a court of equity from granting him the relief 
asked. Babcoch v. Lish, 57 111. 329; Higgins v. Ferguson, 
14 id. 270; Russell v. Rawson, 76 id. 171. 

Third — Even if the complainant was entitled to an undi- 
vided one-third of the land, he was not entitled to an undivided 
one-third of the land as improved, without first having an 
account taken, and paying for his share of the improvements. 



1881.] Baird et al. v. Jackson. 81 

Briefs for the Appellants and Appellee. 

Mr. A. S. Bradley, for the appellants Butler and Boss: 

The complainant's bill is multifarious, as oppressing the 
defendants by the expense and delay of litigating issues of 
controverted titles to distinct properties. Even a simple 
partition suit ought not to embrace parcels not contiguous, 
unless all the co-tenants are interested in all the parcels. 
Freeman on Co-tenancy, sec. 437. 

Under this head, see Prentiss' case, 7 Ohio, 468; 
Hennerville v. Taylor, 3 Gray, 112; Kitchen v. Sheets, 1 Ind. 
137; Mavor v. Armant, 14 La. Ann. 177; Brownell v. Bradley, 
16 Yt. 105; Burnett Y.Lester, 53 111. 326; McConnell v. 
Kibbe, 43 id. 12; Gaines v. Chew, 2 How. 616. 

There is no sufficient proof that complainant did not exe- 
cute the deed of his one-third interest to Dickhant. Kerr v. 
Russell, 69 111. 666; Greene v. Godfrey, 44 Me. 25; Harkins 
v. Forsythe, 11 Leigh, 294. 

Complainant is equitably estopped to contest Butler's title 
as mortgagee of the whole West Twelfth street property. 
Smith v.Neivton, 38 111. 235; Noble v. Christian, 88 id. 199; 
Donaldson v. Holmes, 23 id. 85; BrooJcs v. Record, 47 id. 30; 
Kane Co. v. Herringlon, 50 id. 22; Kinnear v. Machey, 85 id. 
96; Cochran v. Harrow, 22 id, 345; Hefner v. Vandolah, 62 
id. 483 ; Livings v. Wiler, 32 id. 387; Lewis v. Carstairs, 5 
"W. & S. 209 ; Bowen v. Boiven, 30 N. Y. 541 ; Horn v. Cole, 
51 K H. 287; Goeing v. Urig, 18 111. 238; Chandler v. White, 
84 id. 436. 

Messrs. Beam & Cook, for the appellee: 

The complainant has never conveyed his one-third inter- 
est in the property in controversy, or any part thereof, and 
the pretended conveyances, purporting'to have been made by 
him, are forgeries. 

The evidence of Mrs. Bradford, that her signature to the 
joint deed was forged, is evidence that the signature of the 
complainant was forged. Steele v. People, 45 111. 152; Cross 
v. People, 47 id. 152. 
6—98 III. 



82 Baird et al. v. Jackson. [March 

Brief for the Appellee. 

The complainant had no notice or knowledge, actual or 
constructive, of the making and recording of the forged 
deeds, and subsequent mortgages put on record, conveying 
his third interest in the property. 

To constitute an estoppel in pais, all of the following ele- 
ments must be present: 

1. There must have been a representation concerning 
material facts. 

2. The representations must have been made with knowl- 
edge of the facts. 

3. The party to whom the representation was made must 
have been ignorant of the truth of the matter. 

4. It must have been made with the intention it should 
be acted upon. 

5. It must have been acted upon, Bigelow on Estoppel, 
chap. 18, pp. 431,437; People v. Brown, 61 111. 438; Cal- 
houn v. Richardson, 30 Conn. 210 ; r Thrall v.Lathrop, 30 Vt. 
307; Danforth v. Adams, 29 Conn. 107; Martin v. Zellarbach, 
38 Cal. 300; Clark v. Cooledge, 8 Kan. 189; Davidson v. 
Young, 38 111. 145. 

It is also held that to create an estoppel by the acts, repre- 
sentations or conduct of a party, they must have been made 
or done with the intention of influencing the conduct of the 
party claiming the estoppel. See Smith v. Newton, 38 111. 230 
Davidson v. Young, 38 id. 145; Hills v. Graves, id. 455 
People v. Brown, 67 id. 435; Dorlarque v. Cress, 71 id. 380 
Chandler et al. v. White, 84 id. 435; Kinnear v.3faclcey, 85 
id. 96. 

The burden of proof was upon the defendants to prove 
affirmatively all the elements necessary to an equitable estop- 
pel. Hill v. Epley, 31 Pa. St. 331; Morris v. Moore, 11 
Humph. 433. And the evidence of the facts must be clear 
and satisfactory. Preble v. Conger, 66 111. 370. 

The complainant is not equitably estopped to deny the 
validity of the forged deed of March 25, 1868, or the forged 
release and quitclaim deed of May, 1876. Chandler v. White 



1881.] Baird et al. v. Jackson. 83 

Brief for the Appellee. 

et al. 84 111. 435; Davidson v. Young, 38 id. 145; Flower et al. 
v.Elwood, 66 id. 477; Meloy v. Collins et al. 41 Cal. 663; 
Living v. Wiler, 32 111. 387; Whittaker v. Miller, 83 id. 381. 

Francis Jackson is not estopped as against the $40,000 
trust deed executed by Obediah to Lyman Baird, trustee, re- 
corded January 27, 1875. 

The rule that the change of conduct must be induced by 
the acts or conduct of the party estopped, absolutely pre- 
cludes acts done or declarations made, after the change of 
conduct, from creating an estoppel. A representation or 
admission made after the change of position, will not work 
an estoppel. Davidson v. Young, 38 111. 145 ; Hener v. 
Vandolah, 57 id. 20; Garlinghouse v. Whihvell, 51 Barb. 
208. 

There is nothing in the objection that the bill is multifari- 
ous. It was filed under section 39, page 753, Revised Stat- 
utes, 1874. Henrichson v. Hodgen, 67 111. 179. 

It has always been the practice in chancery, in suits for 
partition of an estate, whether in one or more parcels of 
land, to join all parties interested in the whole or any part 
of the lands, even though the derivative interest of one, as 
an alienee of a tenant in common, is confined to one dis- 
tinct parcel, and the interest of another as such alienee is 
confined to another distinct parcel. 1 Story's Eq. Jur. sec. 
656 c, 657; Storey v. Johnson, 1 Younge & Collyer, 538 ; 
2 id. 586. 

So, where one tenant in common has been in the exclusive 
perception of the rents and profits, on a bill for partition and 
account the latter will also be decreed. 1 Story's Eq. Jur. 
sec. 655, and numerous cases cited. Mahoney v. Mahoney, 
65 111. 406. 

All persons interested in the property should be made par- 
ties when the proceeding is in chancery. Kester v. Stark, 19 
111.328; 2Danl. Ch. Pr. 1156; 1 Danl. Ch. Pr. 208, 209, 
263; 1 Wash. R. Prop. p. 585; Danl. Gh. Pr. 336, 341; 
Nichols v. Mitchell, 70 111. 258. 



84 Baird et al. v. Jackson. [March 

Opinion of the Court. 

Mr. Justice Walker delivered the opinion of the Court : 

Obediah Jackson, Sr., died in the year 1865, leaving 
Obediah, Jr., Francis and Alice Mary, his children, and 
heirs at law. At the time of his death, he owned a large 
amount of real estate and a considerable amount of personal 
property. His son Obediah administered on his estate, but 
never settled or distributed the personalty. In October, 
1871, the greater portion of the buildings on the property in 
Chicago was consumed by fire. Of the property thus injured 
were lots 17, 18, 19 and 20, in Sheldon & Humsey's subdivi- 
sion of 205 feet on the south side of block 17, in Bushnell's 
addition to Chicago, and situated on Dearborn street. 

Complainant filed his bill to have his third of this property, 
and also of 40 feet of lot 2, in block 67, canal trustees' sub- 
division, situated on West Twelfth street, partitioned and 
allotted to him in severalty. Also to have certain deeds, 
purporting to have been made by him to convey his third of 
this property, set aside as forgeries, and as clouds on his title. 
The deeds claimed to be forgeries were, one of them, to 
Obediah, Jr., for the Dearborn street property, and bore 
date the 25th of March, 1868. The other was to Dickhant, 
and was for the Twelfth street property, and bore date on the 
25th day of May, 1876. They both purported to have been 
acknowledged, and were recorded. The records having been 
destroyed by the fire which consumed the buildings on the 
Dearborn street property, and the deed to that property not 
being produced on the trial, and the parties being unable to 
procure a copy, they were compelled to rely on an abstract 
of title. It does not give the name of the officer before 
whom the acknowledgment was taken. This deed, according 
to the abstract, purported to have been executed by com- 
plainant and his sister, Alice Mary, who subsequently mar- 
ried N. G. Bradford, Jr. She having settled with Obediah for 
her interest in her father's estate, and executed a release to 



1881.] Baird et ah v. Jackson. 85 

Opinion of the Court. 

him, her interests are in no manner involved in this litiga- 
tion. 

Obediah Jackson and wife, on the 21st of November, 1874, 
executed a trust deed on the Dearborn street property, to 
Lyman Baird, as trustee, to secure the payment of $40,000 
to the Phoenix Life Insurance Company, due in two years. 
Again, on the 13th day of November, 1876, Obediah Jack- 
son executed a trust deed for the same property, to George 
Chandler, as trustee, to secure about $51,000 to the Misses 
Carrolls. The bill alleges that these deeds of trust are 
clouds on complainant's title to the lots, and prays to have 
them removed as such. The first of these deeds of trust was 
executed over two years after Mrs. Bradford had released all 
of her title and interest in the property to Obediah, and he 
then unquestionably held title to two-thirds of this property. 
During the pendency of this litigation, the Carrolls pur- 
chased the indebtedness from the insurance company, and 
thus became the owners of both claims and the deeds of trust. 

The first question presenting itself for solution, is, whether 
the deed, purporting to have been executed by complainant 
and his sister to Obediah, is a forgery. On the trial, com- 
plainant swore most positively that he did not execute this 
deed, and never authorized any person to do so for him. His 
sister was equally as positive that she did not execute it. 
And she testifies she was not aware of its existence until De- 
cember, 1876, or January, 1877. But she learned in 1872 
that Obediah had mortgaged the lots in his own name, as the 
owner. Had the deed been genuine, she would almost cer- 
tainly have known the fact. She, however, knows it was a 
forgery as to her. She, of course, was unable to swear that 
Francis did not execute it, but was able to swear she did not, 
and, as it was a forgery as to her, it raises a strong presumption 
that it was as to him. Her execution of the deed, if genuine, 
would have been a part of the transaction, inseparable from 
it, and would have been indispensable to its validity in the 
form it was made. And, being so inseparably connected, we 



86 Baird et al. v. Jacksox. [March 



Opinion of the Court. 



regard that the evidence that it was a forgery as to her, tends 
strongly to prove it was a forgery as to him. This was a fact 
connected with the execution of the deed, and was of the 
res gestce, and it tends to shed light on the transaction. 

The question of the forgery, as to him, does not depend 
alone on his testimony, as is urged. If it did, numerous 
cases in this court would determine it wholly insufficient to 
overcome the proof of its execution aiforded by the certifi- 
cate of the officer that it was acknowledged before him. It 
is settled by those cases that nothing short of clear and sat- 
isfactory proof, convincing beyond a reasonable doubt, can 
overcome the proof of the certificate. His evidence is 
strongly supported by that of his sister; and she is entirely 
disinterested, and hence her evidence is free from suspicion. 
We think, all the evidence considered, that it proves this 
deed was a forgery. 

But the question still arises that, conceding the deed to be 
a forgery, whether complainant did not so act as to bind 
himself, or rather his third of the property for its pro rata 
share of the expense of the improvements. He admits that, 
as early as in 1872, he and his brother, Obediah, after con- 
sulting as to the propriety of rebuilding on the lots they 
owned in common, the buildings on which had been destroyed 
by fire, determined to rebuild thereon. And, he says it was 
understood that his brother, in doing so, would use real 
estate of his own, and the funds of complainant coming from 
their father's estate. It also appears that afterward, the loan 
from the insurance company of the forty thousand dollars 
was procured, and used in erecting the buildings on these 
lots, and in freeing them, as we understand it, from a prior 
incumbrance of about thirteen thousand dollars. 

It appears that complainant had lived with Obediah, and 
had a desk in his law office, and was on the most intimate 
terms with his brother^ and so continued whilst these build- 
ings were being; erected, and until some time in the year 
1876. When the buildings were being erected, he largely 



1881.] Baird et al. v. Jackson. 87 

Opinion of the Court. 

superintended their construction. He saw Mr. Baird there, 
from time to time, examining the work as it progressed, to 
make advances on the loan from the insurance company as 
the work advanced towards completion. Complainant, from 
this money, which was from time to time placed to Obediah's 
credit at the bank, on checks drawn by Obediah, paid the 
contractors. And, after the buildings were completed, he 
drew leases in Obediah's name, which were signed by him, to 
tenants who occupied the buildings. He collected rents, gave 
receipts for rents in Obediah's name, and placed the money 
to his credit in the bank. This continued until in 1876, and 
never, so far as the record shows, prior to that time having, 
to Baird or any one else, asserted any claim whatever to the 
property. He thus held his brother out to the world, whilst 
the buildings were in progress, and until in 1876, as the sole 
owner of the property. We think he so acted that he is 
estopped to claim that his interest in the property should 
not be held liable for one-third of the cost of the improve- 
ments. He has acquired the enhanced value the improve- 
ments have added to it. And every principle of justice 
requires that he should account to those whose money has 
enhanced the value of his property. If he was unwilling to 
pay for it he should have notified Baird that he would not, 
and had Baird still advanced money for the purpose, the fault 
would have been his, and not complainant's. 

There is another view of the case. It is a familiar and 
elementary rule, that where a tenant in common makes neces- 
sary repairs on the property, necessarily purchases an incum- 
brance, or outstanding title, or improves the property with 
the express or implied assent of his co-tenants, these all 
inure to the benefit of all of the co-tenants, and the law 
requires each to contribute to the expense, in proportion to 
their several interests. Here, appellee authorized Obediah 
to make the improvements. Not only so, but he was present 
frequently, superintending the work, and paid the contractors 
for Obediah with means drawn from his bank account. This, 



88 Baird et al. v. Jackson. [March 

Opinion of the Court. 

then, would seem to render his interest liable to account to 
Obediah for its pro rata share of the cost of the improve- 
ments. 

The rule is familiar, that all improvements placed on real 
estate by the owner when it is incumbered, inures to the 
security or benefit of the holder of the incumbrance. They 
can not be separated, when they savor of the realty, from the 
land, nor can their value be claimed as against the lien, but 
are held to be subject to it. Here, Obediah placed buildings 
on the mortgaged property, and there can be no question 
that, as to his two-thirds, the improvements became liable to 
the debt to the same extent as did his two-thirds of the land 
itself. In placing these buildings on the lots, he acquired a 
lien on the other one-third for a proportionate share of the 
cost of the improvements. And this lien in his favor was 
an accession to the property, or his interest in it, as fully as 
were the improvements. And this lien inured to the benefit 
of the mortgagee, to the same extent, in the same manner, 
and for the same reasons that the improvements became 
liable to the lien of the deed of trust. 

But it is claimed that Obediah agreed to pay for com- 
plainant's portion with the means in his hands, as adminis- 
trator of their father's estate, to which complainant was 
entitled. Concede this to be true, does it appear that Obediah 
performed the agreement, or that he so paid a single dollar? 
"We think not. The tendency of the evidence is strongly in 
favor of the inference that it was the money derived from the 
loan from the Insurance Company, and Obediah's land, that 
paid for the materials and the workmen, and not the money 
coming to complainant from his father's estate. All of the 
evidence on the question shows that the money thus used 
was Obediah's, drawn from the bank on his checks. And 
complainant says he does not know whence Obediah procured 
it. We think it manifest that not only the real estate, but 
the money paid for these improvements, was Obediah's. 



1881.] Baird et al. v. Jackson. 89 

Opinion of the Court. 

Complainant had never had any settlement with Obediah 
in reference to his interest in his father's estate. What was 
coming to him from that source had not been ascertained by a 
settlement in the Probate- Court, or with Obediah. The 
amount was unknown, and never had been adjusted or sepa- 
rated from Obediah's means. He was liable to account to 
Francis for whatever was coming to him. So we regard it 
as clear that no portion of complainant's money was paid for 
these improvements, but all by Obediah with his own means. 

The questions affecting the Twelfth street property depend 
on evidence different in character from that relating to the 
Dearborn street property. It appears that on the 3d day of 
October, 1872, having recently, before that time, procured 
the release for this and other property from his sister, 
Obediah conveyed this property, as an entirety, to one Dick- 
hant. The consideration was about $14,000. A part was 
paid at the time of the purchase, and notes taken for the 
balance. The purchaser, to secure the notes, deeded the 
property in trust to one Field. Afterwards these notes and 
the deed of trust were cancelled, and new notes and a deed of 
trust were given by Dickhant to complainant. 

At the time of the conveyance Obediah only held two- 
thirds of the property, the other third belonging to com- 
plainant. Obediah warranted the title to Dickhant, and the 
notes for the balance of the purchase money were payable to 
Obediah. In 1875 the City Savings Bank, of which Obediah 
was vice-president and attorney, purchased these securities. 
Dickhant, having made default in the payment of interest, 
and Obediah being anxious to raise money on this indebted- 
ness, induced Dickhant to renew them by giving new notes 
for the amount then due, and a new deed of trust to Boss. 
In renewal, one note was given for §6000 and one for $2000. 
The old notes and deed of trust were cancelled when the new 
ones were given. This renewal was made on the 3d of July, 
1876, and defendant Butler purchased the $6000 note through 
brokers of Portland, Maine. Before he purchased, the City 



90 Baird et ah v. Jackson. [March 

Opinion of the Court. 

Savings Bank guaranteed the payment of the notes. On the 
27th of the previous May, the deed, dated on the 25th, pur- 
porting to have been executed by complainant to Dickhant, 
for this property, was recorded. Complainant claims that this 
deed, and the deed of release from him to Dickhant cancel- 
ling the trust deed from the latter to him, are forgeries, and 
this is one of the questions to be determined in this case. 

Complainant, in testifying on the hearing, swore positively 
that he never executed the deed to Dickhant, or authorized 
its execution. This evidence is strongly corroborated by 
Cole, the notary before whom the deed purports to have been 
acknowledged. He testifies that he never took an acknowl- 
edgment of such an instrument from complainant. Had the 
period not been so short before the filing of the bill, this evi- 
dence would have been regarded as of but little weight. 
Such officers are in the habit, in many instances, of taking 
large numbers of such acknowledgments, and, as we presume, 
feel no particular interest in such transactions. It is not, 
therefore, reasonable to suppose they ordinarily charge their 
memory with such occurrences, and they soon pass from their 
memory. But, in this case, the date of the certificate was but 
a few months prior to the alleged discovery of the forgery, 
and no ordinary memory could have forgotten it, had it in 
fact occurred. As he and complainant had been constantly 
associated in the same office for years, he would surely have 
remembered it at so short a period after its occurrence. We 
are, therefore, of opinion that the evidence shows that this 
deed was a forgery. 

It is, however, insisted, that the conduct of complainant 
contradicts his evidence; that he ceased to collect the rents 
of this property after Obediah made the sale, and gave it no 
further attention until Obediah took the rents to meet the 
interest on Dickhant's notes; that his relations and intimacy 
with his brother and his business was such that he must have 
known of the situation of the title to this property. But it 
must be borne in mind, that all such acts occurred before this 



1881.] Baied et al. v. Jackson. 91 

Opinion of the Court. 

forged deed was placed on record, and they can not be held to 
have any bearing on this subsequent deed, or to prove it is 
genuine. They can have no such effect. 

It is claimed, however, that Hammond, the president of 
the City Savings Bank, took the notes and deed of trust to 
complainant in the summer of 1865, at his brother's office, to 
procure his indorsement on some of them, when, after exam- 
ining them, he said it was right, but desired to see Obediah 
before indorsing them ; that Obediah, a day or two after, 
took the notes to his office, and returned with them indorsed 
by complainant. He unqualifiedly denies that such .an inter- 
view, for that purpose, ever occurred, and five of the seven 
notes Avere produced on the trial, and they were not indorsed 
by him. Thus it appears that Hammond was mistaken, and 
referred to some other transaction. But, even if he was cor- 
rect, does it prove that complainant should be precluded from 
asserting his claim to this property, free from the lien of this 
debt? The notes and deed of trust to him, at most, showed that 
Dickhant had given a deed of trust on the whole of the prop- 
erty, when he owned but two-thirds. There is no pretense 
that the forged deed was then on record, or until nearly a 
year afterwards. Even if he did say the instruments were 
right, after examining them, that would not transfer his third 
or estop him from asserting his title to it. The records were 
open to the bank, and, had it examined them, it would have 
found a third of the property belonged to him. That was 
notice to the bank of the state of the title. Had he said, at 
the time specified by Hammond that he had conveyed his 
third to Dickhant, then a very different question would have 
been presented. But, be this as it may, we regard the evi- 
dence as being insufficient to prove the statement to which 
Hammond swears. All the evidence considered, we are 
of opinion that complainant has shown the deed to be a for- 
gery, and Butler and Ross have failed to show that complain- 
ant is estopped from denying 'that the deed of trust is a lien 
on his third of the property. 



92 Baird et al. v. Jackson. [March 



Opinion of the Court,. 



It is also urged, that the bill, as amended by striking out 
the prayer for an account of the estate of the father in the 
hands of Obediah, is still multifarious, and the demurrer 
to it should have been sustained; that by the bill, complain- 
ant insists that he is the owner of one-third of both the 
Dearborn street and Twelfth street property— his tenants in 
common in the one are different in the other; that no one of 
the defendants claims an interest in both of these classes of 
property, and for that reason the bill is multifarious. It may 
be said, that no rule of equity pleading is less definitely set- 
tled, than that of multifariousness, — and, from its very nature, 
it must be so, as another rule requires all persons having an 
interest in the subject matter of the litigation, to be made 
parties. A person may frequently be made a defendant who 
has no interest in common with any other defendant. As to 
all but his particular interest, that of the others may be 
entirely distinct and separate, and yet be embraced in the 
bill, and he made a party. Here, complainant claimed a one- 
third interest in all of the property named in the bill, which 
seeks to have that interest set off and partitioned to him. The 
statute contemplates that more than one tract, and even sepa- 
rate tracts in different counties, may be embraced in one bill. 
See sec. 21, chap. 107, Eev. Stat. 1874. The bill is, there- 
fore, not multifarious, unless it is rendered so by an improper 
joinder of defendants. 

Story, in his work on Equity Pleadings, after reviewing 
the various cases on the subject, in section 539, says: "It 
seems to be, that there is not any positive, inflexible rule as 
to what will be fatal on demurrer. That courts have always 
exercised a sound discretion in determining whether the sub- 
ject matters of the suit are properly joined, or not; and whether 
the parties, plaintiffs or defendants, are properly joined; 
that each particular case must, to some extent, depend on its 
own facts, having reference to former decisions, being gov- 
erned by analogies." It seems to us that there was no error 
in disallowing the demurrer. See Ryan v. Trustees of Shaw- 



1881.] Baird et al. v. Jackson. 93 

Additional opinion of the Court. 

neetown, 14 111. 20; Gage v. Chapman, 56 id. 311, and 
Finch v. Martin, 19 id. 105. But Ross and Butler should 
not be taxed with more than half of the costs in this or the 
lower court. 

The decree, as to the Twelfth street property, is affirmed, 
but it is reversed as to the Dearborn street property, and the 
cause is remanded that further proceedings may be had in 
reference to it, in conformity with this opinion. 

Decree reversed in part and affirmed in part. 

Subsequently, upon an application for a rehearing, the 
following additional opinion was filed: 

Per Curiam: It is urged as one of the grounds for a 
rehearing, that the deed of trust on which the money was 
loaned to Obediah Jackson, Jr., contains other lots and real 
estate in which appellee claims no interest, which should first 
be exhausted, and applied in satisfaction of the deed of trust, 
before resorting to appellee's third of the Dearborn street 
lots. 

The opinion heretofore filed was not intended to nor does 
it exclude this view of the case. When the court below 
shall come to re-try the case, this question can be presented 
and considered, and if that court shall find, on the evidence 
presented, that it is equitable and just to apply the property 
on which appellee has no claim, in satisfaction of the debt, 
before subjecting appellee's third of the Dearborn street lots, 
the court will so decree. 

If the equities of other parties do not forbid, appellant 
should be required to exhaust his remedy against the prop- 
erty to which appellee has no claim, before resorting to his 
Dearborn street property. 

It is a rule of equity, that a creditor, having a lien on two 
funds, in one of which the debtor has no interest, but has in 
the other, the debtor has a right to compel the creditor to 
exhaust the lien on the fund in which he has no interest 



94: Lemont v. Singer & Talcott Stone Co. [March 

Syllabus. 

before resorting to the fund in which he has an interest. 
This rule is, of course, subject to the limitation, that if other 
persons have a superior equity in the fund to which the 
debtor has no claim, then the rule can have no application. 
The petition for a 'rehearing, having been carefully con- 
sidered, is denied. 

Rehearing denied. 



The Town of Lemont et al. 
v. 
The Singer and Talcott Stone Company et al. 

Filed at Ottawa November 20, 1880 — Rehearing denied March Term, 1881. 

1. Taxation — enjoining collection of taxes — upon what grounds, generally. 
A court of equity will enjoin the collection of a tax when it has been 
levied on property exempt from taxation, or the same has been imposed when 
the law has not authorized it to be levied, or when it has been imposed by 
persons not empowered to levy it, or where it has been levied by persons 
authorized to levy it but they have exceeded the amount the law authorizes, 
or when fraud is clearly shown in fixing the valuation of property for 
taxation. 

2. Same — when it is proposed to apply the money for an illegal purpose. But 
where a tax is levied for a proper purpose by persons empowered to impose 
it, and it does not exceed the amount or rate allowed by law, its collection 
will never be restrained because there may be a threat to use it for an unau- 
thorized or illegal purpose. When collected, if any attempt is made to per- 
vert it to an illegal purpose, then equity will interfere and prevent the 
misappropriation. 

3. Same — as to claims improperly allowed by town auditors — and herein, of the 
power of a court of chancery to revise the acts of town authorities. Where town 
auditors audit and allow claims against the town and they are certified and 
presented to the town meeting, where they are discussed and approved by the 
voters, and a tax voted sufficient to pay them, and a further sum sufficient to 
defray the current expenses of the town, it will be presumed that there was no 
fraud in allowing such claims, although some of them may have been illegal and 
not allowable bylaw, and such tax will not be enjoined, if the tax is not in 
excess of that authorized to be levied and collected. 






1881.] Lemont v. Singer & Talcott Stone Co. 95 

Syllabus. 

4. A court of equity is not invested with jurisdiction to conduct the 
affairs of a township, or to supervise and control the action of its officers, 
or the people, so long as they confine themselves to the powers con- 
ferred by statute, though such action may be unwise and not for the best in- 
terests of the people of the township. 

5. Same — allowance of interest by town auditors for labor on roads — as evi- 
dence of fraud. The granting of certificates by town auditors for indebted- 
ness for labor on roads, drawing interest, and afterwards taking them up, 
adding the interest to the principal and giving new certificates for the whole 
amount drawing interest, thus making the town pay compound interest, is 
illegal, as there is no law authorizing even simple interest, but it does not 
prove fraud, so as to authorize the court to enjoin the collection of the tax 
levied to pay such certificates. 

6. Same — mismanagement of toivn funds — effect upon claims of creditors of the 
town. The fact that large sums were collected in previous years, amply suffi- 
cient to have paid all the town charges and claims allowed, while it shows 
that the town officers squandered, wasted and misappropriated the funds of 
the town, or appropriated the same to their own use, is not sufficient to 
prove that the claims allowed were fraudulent, especially when the town 
meeting has approved the same and voted a tax to pay them. 

7. The fact that school directors, in negotiating bonds issued to raise funds 
to build a school house, and in the care and use of the money, may have shown 
great negligence if not recklessness in respect to the interests of the district, 
and may have lost or squandered part of the funds so raised, affords no ground 
whatever for enjoining the collection of a tax to pay the interest on such 
bonds. The holders of the bonds are not responsible for the misconduct of 
such officers. 

8. Same — allowance for time in assessing property. The allowance of bills 
for assessing the taxable property of the town for each of two months for 
nearly double the number of days they contain, by no means proves that such 
claims were fraudulently allowed. Such allowance may have been made under 
a mistaken and unwarranted view of the law, — that eight hours was a day's 
work, in respect to officers in public employment. 

9. Same — road and bridge tax — by whom to be levied, and to what amount. 
Under the Township Organization law and Road law of 1874, the road com- 
missioners were authorized to levy a tax of 40 cents on the $100 valuation of 
taxable property for roads and bridges, and if that was not thought sufficient, 
the town meeting was expressly authorized to levy an additional amount for 
that purpose, not exceeding 60 cents on the $100 valuation, and also a tax 
for other town purposes, and there is no limit of the per cent as to such other 
taxes. If the road and bridge tax exceeds six mills on the dollar, the excess 
will be illegal, and may be enjoined. 



96 Lemont v. Singer &Talcott Stone Co. [March 

Brief for the Plaintiffs in Error. 

10. Municipal bonds — bonds of school district — presumption of their legality. 
Where bonds of a school district, negotiated in the market to raise money 
to build a school house, recite that they have been issued in pursuance of a 
vote of the district legally had, and they are in the hands of innocent hold- 
ers, it must be presumed that they are legal and that their issue was author- 
ized by a legal vote, until the contrary is shown by clear and satisfactory 
evidence. 

1*1. Same — burden of proof. In a suit to enjoin the collection of a tax to 
pay bonds issued by a school district, fair on their face and sold to innocent 
purchasers, and the interest thereon, the burden of proof is on the district 
to overcome the presumption of the legality of the bonds. In mandamus to 
compel the district to issue the bonds, the burden of proof would be shifted 
to the other side. 

Writ of Error to the Appellate Court for the First Dis- 
trict; — heard in that court on appeal from the Circuit Court 
of Cook county; the Hon. W. W. Farwell, Judge, pre- 
siding. 

Messrs. Leaming & Thompson, and Mr. H. C. Irish, for 
the plaintiffs in error: 

A court of equity will not interfere by injunction, to pre- 
vent the collection of a tax, unless the property is exempt 
from taxation, or where the assessment is fraudulently made, 
or where the tax is for an illegal purpose, and then only for 
the illegal part where it is certain and ascertained, — or where 
persons have assumed the power to impose a tax where the 
law confers no such power, — and even in such cases there 
must be special reasons for the interposition of the court to 
restrain the collection. DuPage County v. Jenhs, 65 111. 277; 
Munson v. Miller, 66 id. 380; Merritt v. Farris, 22 id. 303; 
Cook County v. Chicago, Pock Island and Quincy P. P. Co. 
35 id. 460; McBride v. Chicago, 22 id. 574; Metz v. Anderson, 
23 id. 463; Swinney v. Bean, 71 id. 31; Chicago, Burlington 
and Quincy P. P. Co. v. Cole, 75 id. 591 ; Chicago, Burling- 
ton and Quincy P. P. Co. v. Frary, 22 id. 34; Ottawa Glass 
Co. v. McCaleb, 81 id. 562; Cooley on Taxation, 536. 

The injury must be irreparable, or such as only a court of 
equity can relieve. Porter v. Pock Island and' St. Louis P. P. 






1881.] Lemont v. Singer & Talcott Stone Co. 97 

Brief for the Plaintiffs in Error. 

Co. 76 111. 561 ; Chicago, Burlington and Quincy P. P. Co. v. 
Siders, 83 id. 320. 

Under the provisions of section 191, of the Revenue act, 
adopted in 1872 and amended in 1873, mere error or inform- 
ality will not vitiate, or in any manner affect the tax, or the 
assessment thereof. Thatcher v. The People, 79 111. 597 ; Buck 
v. The People, 78 id. 560; Beers v. The People, 83 id. 488. 

The presumption of law is in favor of the legality of the 
tax, and the burden of proof is upon complainants to show 
that these taxes are illegal, and if in part only, then to show 
what portion is illegal. Ilunson v. Miller, 66 111. 380; Buck 
v. The People, 78 id. 560; Beers v. The People, 83 id. 488; 
Thatcher v. The People, 79 id. 603; Ottawa Glass Co. v. Mc- 
Caleb, 81 id. 562. 

For all of the indebtedness, both town and school, incurred 
prior to the adoption of the constitution of 1870, there exists 
the power to levy a tax until such indebtedness is paid, irre- 
spective of the constitutional limitation as to the amount of 
indebtedness for municipal corporations. County of Pope v. 
Sloan, 92 111. 177. 

As to the town tax: The law authorizes and requires a 
town tax to be imposed and collected. There is nothing in 
the constitution or laws of the State limiting the amount of 
the levy for town purposes, inconsistent with the amount 
levied in this case; and a court of equity has no jurisdiction 
to restrain its collection because it is claimed that it may be 
misapplied, or even that the town authorities intend to apply 
a portion of the funds, when collected, to the payment of 
illegal claims. DuPage County v. Jenks, 65 111. 289. 

There is nothing in the record to show the amount of town 
tax levied to pay the highway orders, nor does it appear that 
such highway orders were issued for w T ork done or ordered 
without authority. Commissioners of Highways v. Newell, 80 
111. 592. 

As to the school tax: The fact that some of the bonds of 
the district may have been issued after the constitution of 
7—98 III. 



98 Lemont v. Singer & Talcott Stone Co. [March 

Brief for the Defendants in Error. Opinion of the Court. 

1870 came into force, the authority therefor being derived 
from a vote had prior to that time, will not affect the validity 
of the bonds, even though such bonds, taken in connection 
with the other debts of the district, created a corporate 
indebtedness exceeding five per centum of the taxable prop- 
erty of the municipality. Mason v. City of Shawneetown, 77 
111. 533. 

When the validity of such bonds is called in question in a 
collateral proceeding like this, to which the holders of the 
bonds are not parties, it must clearly appear that the bonds 
are void, to justify the court in defeating the collection of 
taxes to pay them. Edwards v. The People, 88 111. 340. 

Mr. George Scoville, for the defendants in error, to 
show the illegality of the action of the town auditors in audit- 
ing claims against their town, and also improper conduct on 
the part of the school officers and the highway commission- 
ers, cited Williams v. Town of Roberts, 88 111. 11; School 
Directors v. Parks, 85 id. 338; Clark v. School Directors, 78 
id. 474; Adams v. State, 82 id. 132; Peers v. Board of Edu- 
cation, 72 id. 508; Campbell v. State. 41 id. 454; Perry v. 
Kinnear, 42 id. 160; Beauchamp v. Kankakee County, 45 id. 
274; Viley v. Thompson, 44 id. 13-; Glidden v. Hopkins, 4:7 
id. 525 ; School Directors v. Sippy, 54 id. 287. 

Mr. Justice Walker delivered the opinion of the Court: 

This bill was filed by the Singer & Talcott Stone Com- 
pany, and a number of other tax payers, to enjoin a tax lev- 
ied by the town of Lemont for the payment of indebtedness 
owing by the town, and to defray current expenses for the 
year, amounting ^in the aggregate to $8000. Also a school 
tax levied to pay the accruing expenses of schools, and to 
pay bonded indebtedness of the district, aggregating $10,000. 
These taxes were imposed for the year 1874. 

On a hearing the circuit court enjoined the entire town 
tax, and seven-tenths of the school tax as assessed against 



1881.] Lemont v. Singer &Talcott Stone Co. 99 

Opinion of the Court. 

complainants. The case was removed to the Appellate Court 
where the decree was affirmed, and the case is brought to this 
court and errors are assigned on the record. 

It is claimed that the town tax was levied to pay indebted- 
ness that was not sanctioned by law, and the bonds issued to 
aid in building the school house were not authorized by a 
vote of the district, and not being thus authorized, they were 
issued without authority, and are void, even in the hands of 
innocent holders. 

It is claimed that the town auditors allowed charges for 
labor never performed, services never rendered or materials 
never furnished. In regard to all of these charges the bill 
asked the court below to re-examine each charge and re-audit 
each claim allowed by the auditors. The items of indebtedness 
had been presented to and allowed by the proper officers elected 
by the people to perform that duty. Not only so, but the 
claims thus allowed and so certified were presented to the 
town meeting, discussed and approved by the voters present, 
and when thus approved, the meeting voted the levy of a tax 
for an amount sufficient to pay the indebtedness, and a further 
sum sufficient to defray the current expenses of the town. 
The auditors are officers elected by the people to perform 
these duties with others, and when they have so acted and 
their action has been reported to the town meeting, as the 
law requires, and that action has been approved, we must 
presume that there was no fraud in allowing these claims, 
and nothing short of clear and satisfactory evidence can 
overcome this presumption. 

A court of equity is not invested with jurisdiction to 
conduct the affairs of a township, or to supervise and control 
the action of its officers or the people, so long as they confine 
themselves to the powers conferred by the statute. So long 
as they keep within the powers conferred, they are amenable 
to no control by the courts. It is only when they transcend 
their powers that a court of chancery can intervene to restrain 
their action. It has no power to regulate and control their 



100 Lemont v. Singer & Talcott Stone Co. [March 

Opinion of the Court. 

action so long as they perform no function outside of the 
grant of power by the General Assembly. The courts have 
no right to say, that although the officers and the people have 
only exercised legitimate power, the action is unwise, or is 
not for the best interests of the people of the municipality, 
and the act should be restrained. That belongs alone to the 
officers and the people. 

Here, the tax was voted by the people, and certified by the 
town clerk to the county clerk for extension against the tax- 
able property of the town, as required by law. In all of this 
we are unable to discover any thing illegal or, in the slight- 
est degree, irregular, and if it has been legally done, equity 
has no power to enjoin the tax. 

It is, however, said the auditors granted certificates of in- 
debtedness for labor on roads, drawing interest, and after- 
wards took these certificates up, adding the interest to the 
principal, and gave new certificates for the sum thus shown, 
drawing interest, thereby imposing upon the town the 
liability to pay compound interest. "We know of no law 
which authorizes the commissioners of highways to borrow 
money or to pay interest on their indebtedness, much less com- 
pound interest. This was undoubtedly illegal, and was done 
without authority of law. 

It is also said that some one or two accounts were allowed 
for items that could, under no circumstances, be a town charge. 
It may be true that the items charged could not be used by 
the town as a corporate body, and still such articles may have 
been paid to persons performing labor for the town, in lieu 
of money, and this explanation may have been made to the 
entire satisfaction of the voters composing the town meeting. 
At any rate, that body not only sanctioned, but they approved 
these charges, and voted a tax for their payment, and we can 
not hold that there was no legitimate explanation that should 
have been satisfactory, On the contrary, the presumption is 
that it was shown the items were legitimate. 



1881.] Lemont v. Singer & Talcott Stone Co. 101 

Opinion of the Court. 

It is urged that, inasmuch as large sums were collected in 
previous years, amply sufficient to have paid all of these 
claims, we should therefore infer that these claims are 
fraudulent. We do not think this evidence proves that fact. 
It no doubt proves that the town officers squandered, wasted 
and misappropriated the funds of the town, and it may even 
show they have appropriated town funds to their own use, — 
Imt it would not be a fair inference to hold that it proves 
these claims to be illegal or fraudulent, especially when it 
was not so found by the town meeting ; but that body seems 
to have found to the contrary. 

It is claimed, again, that the allowance of the bills for 
assessing the taxable property of the town for each of two 
months for nearly double the number of days they contain, 
is evidence of fraud. It may be that the auditors and voters 
of the town meeting construed the statute fixing eight hours as 
a day's work, when no other time is fixed by agreement of the 
parties, as applicable to officers in public employment. 
Whilst this construction is wholly unwarranted and inadmis- 
sible, it by no means proves fraud. It only proves that they 
misapprehended the true meaning of the statute. 

None of these facts, or even all of them together, prove 
that these claims are all fraudulent. It may appear, and we 
think it does, that the affairs of the town were badly, if not 
recklessly managed, but they were performed by officers 
elected by the people, and indorsed and approved by the 
people in town meeting. 

We have repeatedly said that the taxing power is more lia- 
ble to abuse than any other. But at the same time we feel 
justified in saying, the abuse is more generally by the tax- 
payers themselves than by officers entrusted with the exercise 
of the power. This became so apparent that our present con- 
stitution has imposed a limitation on the power of municipal 
bodies to incur indebtedness beyond a certain amount, to pre- 
vent ruinous taxation to meet the principal and interest. 
These abuses are generally self-imposed, by waste, extrava- 



102 Lemont v. Singer & Talcott Stone Co. [March 

Opinion of the Court. 

gance or negligence of the people themselves, and when such 
is the fact, the courts are properly powerless to afford relief 
against their own acts, when legally performed. They incur 
the indebtedness, they derive the benefits, and must meet 
the obligation. It would be highly unjust and inequitable 
to impose the burthen on those who have performed the 
labor, furnished the money or materials to make the improve- 
ments they have made and enjoy. f 

There is a class of cases in which a court of equity does 
take jurisdiction to afford relief against the collection of 
taxes. Those cases are, where a tax has been levied on property 
exempt from taxation; where a tax has been imposed where the 
law has not authorized it to be levied ; where a tax has been 
imposed by persons not empowered to levy it; where it is 
levied by persons authorized to levy it, but they have ex- 
ceeded the amount the law authorizes; and when a fraud is 
clearly shown in fixing the valuation of property for taxation. 

Was the tax levied by the town meeting for an authorized 
purpose ? If it was not, then it is void and its collection 
should be enjoined. It is claimed that, as these debts were 
incurred for road and bridge purposes, the tax should have 
been levied by the road commissioners and not by the town 
meeting, and that it follows the town meeting had no power 
to levy a road tax, (as, the fund necessary to pay for labor in 
opening and repairing roads and bridges). If this is true, 
and there is no concurrent power in the town meeting to 
levy the tax, then it is unauthorized and void, and it is within 
the jurisdiction of a court of equity to restrain its collection. 

But is this so? The 40th section of the township organi- 
zation law, Rev. Stat.1874, p. 1071, clausel, paragraph 3, con- 
fers power on town meetings to raise money by taxation, " For 
constructing or repairing roads, bridges or causeways within 
the town to the extent allowed by law." Here is clear and 
distinct authority to levy road and bridge taxes. From the 
language employed there can be no question. It is too plain 
to admit of construction. 



1881.] Lemont v. Singer & Talcott Stone Co. 103 

Opinion of the Court. 

The question then arises, what is the extent to which a 
town meeting may levy taxes for such purposes, under the 
law as it then existed? The 120th section of the road law, 
Rev Stat. 932, authorizes the road commissioners to levy 
not exceeding 40 cents on the $100 valuation of property, 
and if that is thought by them not to be sufficient, the town 
meeting is authorized to levy an additional amount not 
exceeding 60 cents on the §100 of valuation. 

Thus it is seen, that the town meeting is fully empowered 
to levy sixty cents on each one hundred dollars of val- 
uation of taxable property, or rather a sum that shall not 
exceed that amount. And the electors are also, by the 40th 
section of the Township Organization law, authorized to levy 
a tax for any other purpose required by law, — and in the same 
section, other purposes are specified. 

Section 125 defines what are town charges. They are, 
compensation of officers of towns ; contingent expenses of 
the town ; the moneys authorized to be raised by the vote of 
a town meeting for any town purpose, and every sum direct- 
ed by law to be raised for any town purpose. The sections 
from 118 to 124 provide for the allowance of claims against 
the town, and the certificate of the amount allowed by the 
town auditors, and filing them with the town clerk for the 
inspection of all persons. The 115th section requires the 
town clerk to certify annually, at the time required by law, 
to the county clerk, the amount of taxes to be raised for town 
purposes. And there is no limit of the percent the town may 
raise for town purposes, other than that for roads, bridges, 
etc., — the town thus having the power to raise six mills on the 
dollar for roads and bridges, and a sufficient sum for other 
and contingent purposes. 

As we understand this record, this tax was levied on a val- 
uation of $927,599. A tax on that sum of six mills on the 
dollar, would produce $5,562 and a fraction. The levy, 
therefore, is legal to that extent as a road and bridge tax. It 
is also legal to the extent of the aggregate amount of 



1 04 Lemont w. Singer & Talcott Stone Co. [March 

Opinion of the Court. 

allowances, for town charges, for contingent and other 
expenses during the year for which the levy was made. 
These amount to a considerable sum, and that amount was 
allowed by the board of auditors and approved by the town 
meeting. 

The town meeting had the power to levy six mills on the 
dollar of taxable value for roads and bridges, and because it 
levied more than that amount, that did not vitiate the acts 
performed within the power. The acts outside of and beyond 
the power are void, of course, and all above the sum pro- 
duced by the levy of six mills on the dollar of valuation 
having been levied without power, it should be restrained 
from collection. But as six mills of this levy was imposed 
in pursuance of legal power at the time and in the manner 
required by the statute, it is collectible. Until the levy 
exceeds the power, or the tax is levied for an unauthorized 
purpose, or is levied at an unauthorized time, or in an unau- 
thorized manner, a court of equity has bo power to interfere 
or prevent its collection. 

Equity will not review the allowance of claims passed by 
the town auditors and approved by the people in town meet- 
ing, on a bill to enjoin the collection of a tax properly levied 
and within the limits the town or its officers are empowered 
to impose the same. In such a case it is a proper tax for a 
proper purpose, and legally imposed, and there can be no 
grounds for restraining its collection. If the court were 
compelled to hear evidence and re-audit all claims allowed by 
the auditing board, and restrain the collection of a tax 
legally imposed until that was done, it would greatly embar- 
rass these municipal bodies, and especially so, if, on a re- 
auditing, all of the claims were found to be properly allowed, 
or but a trifling amount improperly passed. 

A court of chancery can not be converted into an auditing 
board, to hear evidence, and determine whether any item, 
great or small, has been properly allowed. That duty has 



1881.] Lemont v. Singer & Talcott Stone Co. 105 

Opinion of the Court. 

been imposed, by law, on another body, created for the pur- 
pose and empowered to pass on claims against the town. 

If, when the tax is collected, the town officers attempt to 
apply it to the payment of illegal claims, then, and not till 
then, will the court interfere. 

If a claim that under no circumstances could become a 
charge on the particular fund, had been allowed, it would be 
the duty of the officer having the disbursement of the fund 
to refuse payment, or, if he were determined to pay such a 
claim, the question would then arise, whether equity would 
enjoin the performance of the act. 

This tax was levied for road and bridge purposes, and no 
one can say when it is collected it will not be applied to the 
repair of roads and bridges, and, if so, complainants have no 
right to complain. If the certificates for road labor are ille- 
gal, the town is not bound to pay them, and would have the 
undoubted right to expend the money for legitimate purposes, 
although the town meeting said the tax should be levied to 
pay them. If they are legal charges against the fund they 
should be paid. Nor is this case controlled by former deci- 
sions of this court, so far as the record discloses. It no 
where appears that these certificates were given for money 
loaned to the town or the highway commissioners. But it 
was, as we understand the record, for labor done and ma- 
terials furnished and used on the roads and bridges after the 
taxes were levied to meet the expense, and if the highway 
commissioners appropriated the money to their own use, can 
that preclude the town from levying and collecting a tax to 
pay for the labor and materials thus received and appropri- 
ated. .». 

It is insisted by complainants that a sufficient tax was 
levied and collected to pay these claims, but the highway 
commissioners had squandered it. There is no pretense that 
the holders of these certificates have been paid. Then should 
they be precluded from receiving what is justly due them? 
Surely not. All we have said in reference to the road and 



106 Lemont v. Singer & Talcott Stone Co. [March 

Opinion of the Court. 

bridge tax applies to taxes for current expenses, as well as 
taxes for other purposes. 

It then follows, that the court erred in enjoining all of the 
tax above six mills on the dollar of valuation, levied for road 
and bridge purposes, and in restraining the collection of any 
portion of the town tax for current expenses for the year. 
This latter tax was clearly legally levied, for a legal purpose, 
at the proper time, and in the proper manner. 

The question remains, however, whether the court below 
decided correctly in restraining the collection of seven-tenths 
of the tax levied to pay bonds previously issued to procure 
means to pay for the erection of a school building for the 
use of the town. It is denied that the electors ever voted 
authority to borrow money for the purpose, and the bonds 
are therefore void. All the evidence considered, we are 
of opinion it clearly establishes the fact that authority was 
voted. Two witnesses so testify, most explicitly, whilst the 
other witnesses are uncertain as to the fact, and declare they 
have no recollection that the vote was taken. This opposing 
evidence, if it may be said to be such, wholly fails to over- 
come this positive evidence. 

But it is said the evidence should have been by the records 
of the town. We regard this a misconception. It was, we 
think, shown that there was another record book, which 
was lost and could not be produced, and a portion of the 
records of the school board made on loose pieces of paper 
that were not produced. The bonds were issued, negotiated 
in market and recited that they were issued in pursuance of 
and under the sanction of a vote legally had. The bonds 
being in the hands of innocent holders, the presumption must 
be indulged that they are legal, until that presumption is 
overcome by clear and satisfactory evidence. In such a case 
the burthen of proof is on the school district to overcome 
that presumption. If this was a proceeding by mandamus to 
compel the district to issue bonds, the burthen would be on 
the other side. 



1881.] Lemont v. Singer & Talcott Stone Co. 107 

Opinion of the Court. 

It would be wholly unreasonable and unjust to permit the 
people to vote to borrow money, bonds to be issued, money 
obtained, used in the erection of a school building, which is 
used and enjoyed by the people of the district, and then per- 
mit them to escape its payment simply by the destruction of 
the records kept by their officers, either by accident or 
design. 

To adopt a rule that would produce such injustice, could 
never be tolerated by a court of justice. To so hold would 
be to say, you may legally borrow money, execute the bonds 
of the district to evidence the indebtedness, obtain and enjoy 
the school building, but you may escape its payment by 
destroying the record evidence made by your own officers 
and in their custody. Such is not, nor can it be the rule. 

In this case, complainants have not proved the want of 
authority, but the defendants have proved authority. When 
the bonds were offered in market a purchaser had the pru- 
dence, knowing he was dealing in municipal securities and 
that authority to issue them depended on a compliance with 
the law, to consult attorneys, who, after an investigation, 
pronounced them legally issued. This is strong corroboration 
of the evidence of the two witnesses, that authority was 
voted to issue bonds, and that there was an entry of the fact 
made in the records of the proceedings of the board. 

The 47th section of the school law, then in force, author- 
ized the district to borrow money and issue bonds therefor, 
and limits the amount to five per cent on the assessed value 
of the taxable property in the district. That would seem to 
be about $45,000 or something upwards, and although it 
does not appear what amount of bonds were issued, we 
think there can, from the evidence, be no reasonable claim 
that the bonds reached, and surely did not exceed that sum. 
We can not see the slightest equitable grounds for enjoining 
this levy to pay this school indebtedness. The rate of the 
levy is not in excess of the per cent allowed by that section. 
It allows a levy of three per cent to defray the expenses of 



108 Lemont v. Singer & Talcott Stone Co. [March 

Opinion of the Court. 

keeping the school in operation, and a greater per cent to 
pay existing indebtedness. 

It is urged with apparent earnestness, that the directors 
were wasteful, extravagant, and even reckless, in the expendi- 
ture of money in erecting the building. This is no doubt 
true, as the evidence seems to show a want of competency or 
a degree of carelessness, if not recklessness, that we presume 
is scarcely paralleled in our State. They issued bonds without 
keeping even a memorandum of dates, amounts or number. 
They placed them in the hands of persons to sell, w T ho, on 
the receipt of the money, made no report to any one of the 
amount received, the amount paid out, on what account, or 
to whom. The money thus received was neither paid nor 
reported to the treasurer of the board. None of the direc- 
tors pretend to have even an idea approximating the 
amount of bonds issued. They acted more like insane than 
rational men. They sold a portion at a little over two-thirds 
of their par value. But conceding all this, why, in the 
name of reason and justice, should the bondholders be pun- 
ished for the misconduct of these officers? The people of 
the district elected them, clothed them with power to per- 
form the acts, — not only so, but they continued them in office, 
took no steps to learn whether they were abusing their 
power, and the tax-payers surely have no right to punish 
their creditors for the misdeeds of their officers. 

But inasmuch as there is a portion of the eight thousand 
dollars levied for town purposes, in excess of six mills on 
the dollar for road and bridge purposes,, and not required 
for other town purposes, that excess should be enjoined, 
and the court below should by an appropriate reference 
ascertain the amount and restrain its collection. But as to 
all other portions of the tax the bill is directed to be dis- 
missed. 

The decree of the Appellate Court is reversed and the 
cause remanded. 

Decree reversed. 



1881.] Bank of Montreal v. Page. 109 

Syllabus. 

Mr. Chief Justice Dickey, dissenting: 

I think this decree should be affirmed. The fact that the 
voters at a town meeting are often a very different body of 
men from the tax-payers of the town, seems to be overlooked. 
I think also that a body of men in town meeting may act 
fraudulently, and in such case the courts have full power to 
protect from the wrongful effect of such fraud. I find noth- 
ing in the record from which it may be inferred that the 
defendants in error in this case are in any way doers of the 
wrongs they complain of. I think also, that there is no 
sufficient ground to presume, after one record of the proceed- 
ings of a town meeting is produced and identified, that there 
were two records kept. The memory of men is too unworthy 
of trust to be allowed to control a record of proceedings, offi- 
cially kept at the time of the proceedings. 



The Bank of Montreal 

v. 

William E. Page. 

Filed at Ottawa November SO, 1880 — Rehearing denied March Term, 1881. 

1. Partnership — of its duration and dissolution. If a partnership is formed 
for a single purpose or transaction, it ceases as soon as the business is 
completed, or whenever there is an end put to the business; and although 
a partnership is entered into for one year, it may be terminated by mutual 
consent at any time the partners may choose. 

2. When partners by resolution determine to cease doing business and 
■wind up the same, and appoint one of their number, or a third party, to take 
charge of the property and accounts, and to dispose of the property and 
collect their accounts, this will amount to a dissolution of the partnership 
and a revocation of the powers of any other agent before that time acting 
for the firm. 

3. Same — powers of partners after dissolution. In the absence of stipula- 
tion to the contrary, in case of dissolution, every partner is left in the pos- 
session of the full power to pay debts, and collect debts due the firm, to apply 



110 Bank of Montreal v. Page. [March 

Syllabus. 

the partnership funds and effects to the discharge of their own debts, to ad- 
just and settle the unliquidated debts of the partnership, to receive any 
property belonging to the partnership, and to make due acquittances, dis- 
charges, receipts and acknowledgments of their acts in the premises. 

4. While the dissolution does not revoke the authority to liquidate, settle 
and pay debts already created, it operates as a revocation of all authority for 
making new contracts, and since the giving of a promissory note or the ac- 
ceptance of a bill or draft is the making of a new contract, although it may 
be for a prior debt, a partner after dissolution can not thus bind the firm or 
authorize another to do so. 

5. To hold the members of a partnership liable for commercial paper 
executed or accepted by direction of one member after the dissolution, on the 
ground that the person taking and discounting such paper in the late firm 
name and style had no knowledge of the dissolution, it must be shown that the 
members constituting the partnership were known to the person so discount- 
ing such paper previous to the time of taking and discounting the same, 
especially where the acceptance fails to show who composed the firm. 

6. Same — acts of agent — whether binding. Where one firm was indebted to 
another firm, and, after dissolution of the first, the former partners employed 
a member of the latter firm to close and wind up its business and pay its 
debts, and such agent, acting in behalf of his own firm, drew drafts in the 
name of his firm, payable to themselves, and procured a person who had 
before been the manager of the first firm to accept the same, supposing 
he had such authority, but not giving or attempting to give such manager 
any authority to accept for his principals, it was held that the first named 
firm was not liable on the acceptances, it appearing that such manager at 
the time had no authority to accept the draffs on behalf of his principals. 

7. Although a partnership may exist in the name of one as lessee, who is 
merely the agent of the firm to transact a particular business, as, the manu- 
facture of brick, and not a member of the firm, it will not be bound by such 
agent's making or acceptance of commercial paper, without direct and specific 
authority from the firm, or some member thereof before dissolution, or unless 
the firm or some member during the existence of the partnership ratified the 
act of such agent. 

8. Instructions — not based on evidence. There is no necessity to state 
principles or make qualifications in instructions having no basis in the evi- 
dence upon which to rest. 

9. Practice — reviewing evidence on appeal from Appellate Court. Although 
on an appeal from the Appellate Court, this court can not review questions 
of fact to ascertain where the preponderance is, it is essential to examine 
the evidence to see if its tendency is such as to present a fair question of 
fact, to which mooted questions of law embodied in or omitted from instruc- 
tions are applicable. 






1881.] Bank of Montreal v. Page. Ill 

Statement of the case. 

Appeal, from the Appellate Court for the First District ; 
— heard in that court on appeal from the Circuit Court of 
Cook county ; the Hon. John G. Rogers, Judge, presiding. 

The Bank of Montreal brought assumpsit, in the circuit 
court of Cook county, against Gregg, Swift, Page, Bowen, 
Beclfield, Talcott and Walker, as acceptors, under the name 
of " E. F. Knight, lessee," of two drafts that were discounted 
by said bank, which drafts, with their indorsements, are as 
follows : 

"No. 3766. Eedfield, Bowen & Co., 

Iron Merchants and Manufacturers, 
Sales-rooms, 112, 114 and 116 Lake Street. 1 
" $1446.67. Chicago, Dec. 20, 1875. 

" On April 20th, 1876, pay to the order of ourselves, four- 
teen hundred and forty-six t 6 q 7 o dollars, with exchange,, with 
interest at the rate of ten per cent per annum after maturity. 

" EEDFIELD, BOWEN & WALWORTH CO. 
" To Mr. E. F. Knight, Lessee, 
Room 2, 175 LaSalle St., Chicago. 

(Endorsed.) " Eedfield, Bowen & Walworth Co., F. A. 
Bowen, Treasurer. 

(Written across the face.) "Accepted payable at 

"E. F. Knight, Lessee." 

* No. 3780. Redfield, Bowen & Co., 

Iron Merchants and Manufacturers, 
Sales-rooms, 112, 114 and 116 Lake Street. 
" $2638.20. Chicago, Jan. 15, 1876. 

" On May 20th, 1876, pay to the order of ourselves, twenty- 
six hundred and thirty-eight T 2 ° dollars, with exchange, with 
interest at the rate of ten per cent per annum after maturity. 

* EEDFIELD, BOWEN & WALWOETH CO. 
"To Mr. E. F. Knight, Lessee, 
Room 8, 175 LaSalle St., Chicago. 



112 Bank of Montreal v. Page. [March 

Statement of the case. 

(Endorsed.) " Redfield, Bowen and Walworth Co., F. A. 
Bowen, Treasurer. 

(Written across the face.) "Accepted payable at 

"E. F. Knight, Lessee." 

Gregg and Swift were not served with process, and did 
not enter their appearance. The other defendants were 
served with process, and Page, Talcott and Walker pleaded, 
first, the general issue, and, secondly, denying the execution 
of the acceptances, and that they were partners with each 
other, under oath. Issues were joined upon these pleas, and, 
the cause coming on for trial, the same were submitted to a 
jury, who returned a verdict thereon in favor of the defend- 
ants. Motion for new trial was made and overruled, and 
judgment was, thereupon, rendered on the verdict. From 
that judgment an appeal was prosecuted to the Appellate 
Court for the First District, and the judgment of the circuit 
court was, by the judgment of that court, affirmed. The 
present record brings the last named judgment to this court 
for review. 

The Bank of Montreal, the appellant, contends that the 
appellees, Page, Talcott and Walker, together with their co- 
defendants, Bowen, Redfield, Gregg and Swift 3 in May, 1875, 
associated themselves together as partners, to carry on, for 
one year, certain works for the manufacture of bricks, which 
works belonged to a company styled the " Excelsior Pressed 
Brick Company," and also to erect a kiln and burn bricks 
therein, under a certain patent belonging to another company 
styled the " Ceramic Gas Kiln Company;" that, pursuant to 
this purpose, one E. F. Knight was employed by the co- 
partnership as general manager, and to him was then executed 
a lease of the works of the " Excelsior Pressed Brick Com- 
pany," and the business was entered upon and carried on in the 
name of "E. F. Knight, lessee;" that in November, 1875, a 
meeting of the partners was held, at which the defendant 
Bowen was appointed to take charge of the property and 









1881.] Bank of Montreal, v. Page. . 113 

Statement of the case. 

accounts of the partners, then held by E. F. Knight, for the 
purpose of winding up the partnership business, with full 
power to act in the premises as attorney and a^ent for the 
other partners; that Bowen, pursuant to this appointment, 
proceeded, with the assistance of Knight, (who remained 
with him thus employed until after January 20, 1876), to sell 
the brick on hand and to break up and dispose of the iron 
work of the kilns, and get in the outstanding indebtedness 
of the partnership; that an indebtedness was incurred to the 
"Bowen, Kedfield and Walworth Company," by the partner- 
ship, for material, work, etc., in constructing a kiln in which 
to burn the bricks by the process of the patent of the 
"Ceramic Gas Kiln Company," for which indebtedness drafts 
and notes were executed in August and September, 1875, and 
that the drafts, upon which this suit is brought, were accepted 
by Knight, by the direction and approval of Bowen, as re- 
newals of those drafts and notes. 

The appellees, on the other hand, deny that they were 
partners with each other or with their other co-defendants. 
They contend that they simply agreed to loan E. F. Knight 
$2500 each to enable him to lease and carry on the works of the 
"Excelsior Pressed Brick Company; " that they, together with 
the defendant Gregg, were stockholders and bondholders of the 
" Excelsior Pressed Brick Company," of which Knight had 
been superintendent, and the financial condition of which was 
bad; that Gregg and the defendants Bedfield, Bowen and 
Swift, were, at the same time, stockholders and officers of the 
"Ceramic Gas Kiln Company," which company was the 
owner of what was considered a valuable patent for burning 
brick, and they were desirous to erect one of the kilns at 
some brick works in order to practically demonstrate the 
advantage of their patent; that Knight made a proposition 
to lease the works of the " Excelsior Pressed Brick Com- 
pany," representing that if he could borrow sufficient money 
to pay off pressing liens, put the works in good shape, and 
have a small working capital, he could make brick enough 
8—98 III. 



114 Bank of Montreal v. Page. [March 

Statement of the case. 

to pay the coupons that had matured and were maturing 
on the mortgage bonds of the " Excelsior Pressed Brick 
Company," fepay the moneys loaned him, and, besides, make 
a comfortable living for himself; that, thereupon, they, — 
that is, the appellees, — after considering the proposition, each 
agreed to loan him $2500 for these purposes ; that those en- 
gaged in the Ceramic Gas Kiln Company, — that is, the de- 
fendants Bowen, Pedfield, Gregg and Swift, each agreed to 
loan a like sum for the purpose of having an opportunity to 
exhibit the efficacy of their patent kiln, which they proposed 
to erect, in burning bricks; that these loans were separate, 
individual loans, forming a separate liability of Knight, hav- 
ing no relation the one to the other; that Knight made a 
failure of the business, and, not having paid anything back 
to those who had advanced him the money, he offered 
to turn over what assets he had on hand, which proposi- 
tion was accepted, and Bowen was appointed as trustee 
to receive these assets, sell them and pay each of those who 
had so loaned money to Knight, pro rata, as far as he could 
realize. It is denied by them that Knight was paid any 
salary, or that he was ever authorized to draw drafts, even 
if it be conceded that the defendants were partners, and 
they claimed that the materials that entered into the con- 
struction of the furnace were furnished upon the credit of 
the "Ceramic Gas Kiln" by the "Kedfield, Bowen and Wal- 
worth Co.," and are properly chargeable only against that 
company. 

It is further claimed, that even if Knight ever had author- 
ity to make acceptances for the defendants, that authority was 
revoked by the meeting of the defendants in November, 1875, 
at which the defendant Bowen was appointed to take charge 
of the property and accounts of the defendants, then held 
by Knight, for the purpose of winding up the business, and 
the partnership, if any theretofore existed, was dissolved, and 
hence, subsequent to that time, Bowen had no authority to 






1881.] Bank of Montreal v. Page. 115 

Brief for the Appellant. 

make acceptances, either by his own act or through Knight, 
which would be binding upon the defendants. 

Mr. Melville W. Fuller, for the appellant : 

If the name of a principal is signed by an agent in the 
presence of the principal, and by his direction, this will be 
sufficient to bind the principal, though there be nothing on 
the face of the note to show the agency. Morse v. Green, 13 
N. H. 32 ; First National Bank v. Gay, 63 Mo. 33 ; Bingham 
v. Peters, 1 Gray, 139; Woodbury v. Moulton, 47 N. H. 11. 

Clearly, this must be so as to an acceptance in Illinois, in 
which State it is well settled that a parol promise to accept 
an existing, or even a non-existing bill, is binding. Jones v. 
Council Bluffs Bank, 34 111. 319 ; Mason v. Dousay, 35 id. 
434; Nelson v. First Nat. Bank, 48 id. 36; Scudder v. Union 
Nat Bank, 1 Otto, 406 ; Mason v. Bumsey, 1 Campb. 384. 

If there is a partnership, the members of which are known 
to a party who discounts the partnership paper after a disso- 
lution of which he is ignorant, the paper is binding on all 
of the partners, irrespective of the question whether some of 
them held themselves out as partners or not. Parsons on 
Partnership (2d ed.), 431, 416. 

Where negotiable paper is given for a transaction outside 
of the scope of a partnership, it will bind, if the proceeds are 
received and held by the firm, Richardson v. French, 
4 Mete. 577 ; Jaques v. Marquand, 6 Cow. 497 ; Whittaker v. 
Brown, 11 "Wend. 75; Clay v. Cottrell, 18 Pa. 408; Thick- 
russe v Bromilow, 2 Cromp. & J. 425. 

It is settled law in this country that it matters not that 
the defendants meant not to be partners at all; and were not 
partners inter sese. They may be partners as to third persons 
notwithstanding. Manhattan Brass Co. v. Sears , 45 N. Y. 
797 ; Leggett v. Hyde, 58 N. Y. 278. 



116 Bank of Montreal v. Page. [March 

Brief for the Appellee. 

Messrs. Hunter & Page, for the appellee : 

It is a well settled principle of law, that an agent has no 
authority to make or accept commercial or negotiable paper 
for his principal, without direct and specific authority from 
his principal. 1 Daniel on Negotiable Instruments, 220; 
Byles on Bills, 32; Sewanee Mining Co. v. McCall, 3 Head, 
619. 

A general authority to transact business for the principal 
will not authorize the agent to bind him as a party to nego- 
tiable paper, according to the general principles of the law 
of agency. 1 Daniel on Neg. Instr. 220; Paige v. Stone, 10 
Mete. 160; 1 Parsons on Notes, etc. 196, 106; Hogg v. 
Snaith, 1 Taunt. 347; Hay v. Goldsmith, 2 J. P. Smith, 79. 

Authority to an agent to make purchases of goods and 
supplies and pay for them, or to buy and sell goods for a 
trading company, does not authorize the giving of a note or 
acceptance of a draft for the amount. Brown v. Parker, 7 
Allen, 339 ; Tabor v. Cannon, 8 Mete. 456 ; Possiter v. Boss- 
iter, 8 Wend. 494; Emerson v. Providence Hat Manufac. Co. 
12 Mass. 237; Scott v. McClellan, 2 Greenlf. 199. 

An agent for attending and managing a grocery and pro- 
vision store is not authorized in consequence of such agency, 
to indorse notes in the name of his principal. Smith v. Gibson, 
6 Blackf. 369 ; 1 Parsons on Notes, etc. 116 (n. 3) ; 1 Daniel 
on Nego. Instr. 221. 

K; A partner's authority to sign the partnership name to com- 
mercial paper ceases with the dissolution of* the firm, even as 
to pre-existing indebtedness, and without such authority he 
can not authorize another to do so. 2 Bell's Com. 644; Coll- 
yer on Part. sec. 541; 1 Daniel on Nego. Instr. 278; 1 
Parsons on Notes and Bills, 145; Abel v. Sutton, 3 Esp. 110; 
Pindar v. Wilkes, 5 Taunt. 612 ; Kilgour v. Finlyson, 1 Henry 
Black. 155; Bank of S. Carolina v. Humphreys, 1 McCord, 
389; Sanford v. 3Iickles, 4 Johns. 224; Lansing v. Gaine, 
2 id. 299; Bank of Port Gibson v. Baugh, 9 Sm. & M. 
290; Mitchel v. Ostrom, 2 Hill, 520. 



1881.] Bank of Montreal v. Page. 117 

Opinion of the Court. 

Nor will authority to give or renew a note be implied by 
authority to settle the business of the firm and sign the part- 
nership name for that purpose, or to settle the partnership 
concerns, or to wind up the affairs of the firm, or any similar 
authority. 1 Daniel on Nego. Instr. 280; Perrin v. Keene, 
19 Me. 355; National Bank v. Norton, 1 Hill, 572; Parker v. 
Cousins, 2 Gratt. 373; Long v. Story, 10 Mo. 636; Palmer v. 
Lodge, 4 Ohio St. 21 ; Abel v. Button, 3 Esp. 110. 

A partner, after dissolution, can not put the partnership 
name upon negotiable paper so as to bind the other partners, 
even though such paper be given in settlement of subsisting 
partnership liabilities, or to renew outstanding partnership 
notes or drafts. Perrin v. Keene, 19 Me. 355; National 
Bank v. Wharton, 1 Hill, 572 ; Parker v. Cousins, 2 Gratt. 
373; Haddock v. Crocheron, 32 Texas, 276; Palmer v. Lodge, 
4 Ohio St. 21. 

This court, on appeals from the Appellate Court, is pro- 
hibited from examining questions of fact, except in certain 
specified cases. And when an instruction is given, it will be 
presumed, unless the certificate of the Appellate Court is to 
the contrary, that there was evidence upon which to base it; 
and where an instruction is refused, it will be presumed that 
the facts do not require it, unless the certificate shows a dif- 
ferent state of case. Wabash B. R. Co. v. Renks, 91 111. 406; 
Gravett et al. v. Lavis, 92 id. 190; Laird v. Warren, id. 204; 
Aurora v. Pennington, id. 564; Carr v. Miner, id. 604. 

Mr. Justice Scholfield delivered the opinion of the 
Court : 

Appellant contends that the fifth instruction given by the 
circuit court, at the instance of appellees, is erroneous. That 
instruction is as follows; " The jury are instructed, as a 
matter of law, that if they believe from the evidence, that 
the defendants were a co-partnership under the firm name of 
<E. F. Knight, Lessee/ and that E. F. Knight was their 
agent merely in the manufacture of brick, but without 



118 Bank of Montreal v. Page. [March 

Opinion of the Court. 

authority to accept drafts or to make any commercial paper, 
and that said Knight, as such agent, assumed the authority to 
accept the drafts sued on, without the knowledge or consent 
of said defendants Talcott, Walker and Page, or either of 
them, and that when the knowledge came to them of the 
fact that said Knight had accepted the drafts held by the 
plaintiff, said Talcott, "Walker and Page respectively repu- 
diated the same and refused to recognize the authority of 
said Knight to accept said drafts, then the jury should find 
for said last named defendants." 

The respect in which appellant contends the error exists is 
this: If there was a partnership between the defendants, 
and one of the partners authorized the acceptances, all the 
partners would be bound. As a matter of fact, Bowen, one 
of the partners, drew the drafts himself and procured their 
acceptance by Knight. Hence, Knight was clearly author- 
ized to accept by one of the partners, and the act of accep- 
tance was as binding on all the partners as if Bowen had 
himself accepted, " as he might fairly be argued to have 
done by the mere fact of drawing, and as he certainly did 
by directing the acceptances." 

There are, in our opinion, two objections to this position : 
First — The evidence does not tend to show that Bowen, 
in his capacity as partner, authorized the acceptances, or, in 
that capacity, directed that they be made. Bowen was treas- 
urer of the " Pedfield, Bowen and Walworth Co." He 
understood the defendants to be indebted to that company. 
He, assuming that Knight, as agent, was authorized to make 
acceptances, binding on the defendants, drew the drafts, 
endorsed the words "accepted payable at "and pre- 
sented them to Knight for his signature, and having obtained 
it, negotiated and traded them to the appellant. In all this, 
he was acting as treasurer and agent of the " Bedfield, 
Bowen and Walworth Co." and collecting a debt due it from 
the defendants. He did not give or attempt to give authority 
to Knight to make the acceptances, for he assumed that 



1881.] Bank of Montreal v. Page. 119 

Opinion of the Court. 

Knight already had such authority. He did not himself, in 
this transaction, act or pretend to act for the defendants, but 
for the " Redfield, Bowen and Walworth Co." And there is 
no evidence tending to prove any other state of facts. 

Second — The drafts were drawn on the 20th day of 
December, 1875, and the 15th day of January, 1876, respec- 
tively. On the 8th of November, 1875, there was a resolu- 
tion agreed to by the defendants, whereby Bowen was author- 
ized to take charge of the property and accounts of the defen- 
dants then held by Knight, as lessee, for the purpose of wind- 
ing up the business of the defendants as associate lessees, 
etc. 

As to Knight, this took the business out of his hands and 
placed it in those of Bowen. It was a revocation of his 
agency. And, if there was a partnership between the defen- 
dants, it was a dissolution of that partnership, and Bowen's 
powers, thenceforth, were precisely those of a partner after 
dissolution, upon whom, by the mutual agreement of the 
partners, was the burden of closing up the unfinished busi- 
ness. 

Kent, in his Commentaries, vol. 3 (8th ed.) 58 * 53, says: " If 
a partnership be formed for a single purpose or transaction, 
it ceases as soon as the business is completed, and nothing 
can be more natural and reasonable than the rule of the civil 
law, that the partnership in any business should cease when 
there was an end put to the business itself." See also Par- 
sons on Partnership (1st ed.), 385. 

The partnership claimed here was to last for one year, but 
there is nothing in the character of a contract for partner- 
ship, any more than in any other contract, to prevent the par- 
ties thereto subsequently modifying it and terminating it at 
an earlier period. They might, by mutual consent, terminate 
it when they pleased. Collyer on Partnership, (4th Am. 
Ed.) p. 108, § 119; 3 Kent's Com. (8th ed.) 108. 

By this resolution, in the language of the civil law, 
as quoted by Kent supra, " there was an end put to the busi- 



120 Bank of Montreal v. Page. [March 

Opinion of the Court. 

ness." Knight was superseded, and Bowen was not to pros- 
ecute or carry on the business, but to " wind; it up," or, iu 
other words, close it up. His functions related exclusively 
to past transactions. 

It is true, that after dissolution, a " kind of community 
of interest, of power and of liability," as between the origi- 
nal partners, continues, — Parsons on Partnership, (1st ed.) 
380, — but this is only for the purpose of closing or " winding 
up " the affairs of the partnership. In the absence of stipula- 
tion to the contrary, in case of dissolution, every partner is 
left in possession of "the full power to pay and collect debts 
due to the partnership; to apply the partnership funds and 
effects to the discharge of their own debts; to adjust and 
settle the unliquidated debts of the partnership; to receive 
any property belonging to the partnership; and to make due 
acquittances, discharges, receipts and acknowledgments of 
their acts in the premises." Story on Partnership, § 328; 
Collyer on Partnership, (4th Am. Ed.) § 546. See also 
Heartt v. Walsh, 75 111. 200 ; Gordon v. Freeman, 11 id. 14; 
Major v. Hawkes, 12 id. 298; Granger v. McGilvra, 24 id. 
152. 

The dissolution does not revoke the authority to arrange, 
liquidate, settle and pay debts already created, but it operates 
as a revocation of all authority for making new contracts; 
and, since the giving of a promissory note, or the acceptance 
of a bill of exchange or draft, is the making of a new con- 
tract, although it may be for a prior debt, a partner, after dis- 
solution, can not thus bind the firm. Collyer on Partnership, 
(4th Am. Ed.) § 541 ; 3 Kent's Com. (8th ed.) 70; Hamil- 
ton v. Seaman, 1 Ind. (Carter's) 185; Palmer v. Dodge, 4 
Ohio St. 21; Wilson v. Forden, 20 id. 89; Haddock v. 
Crocheron, 32 Texas, 276; Curvy v. White, 51 Cal. 530; 
Brown v. Broach, 52 Miss. 536; Smith v. Sheldon, 35 Mich. • 
42; B. K. of S. C. v. Humphreys, 1 McCord, 389; Daniel 
on Negotiable Instruments, vol. 1, p. 280, § 373; Perrin 
v. Keene, 19 Me. 355; National Bank v. Norton, 1 Hill, 572. 






1881.] Bank of Montreal v. Page. 121 

Opinion of the Court. 

The authority which the resolution gives to Bowen, "to 
wind up the business/' it is plain, is not in excess of the 
power he possessed as partner, after dissolution, as shown, 
supra. That was precisely what each partner might do with- 
out any contract; but, by contract, they might agree that a 
designated one — Bowen here, should alone do it — or, in 
other words, that Bowen should, and the others should not,, 
exercise the powers possessed by each as partners, in regard 
to settling up the partnership business. 

If Bowen, of himself, could not have made the acceptances 
on the 20th of December, 1875, and January 15, 1876, re- 
spectively, because of the previous dissolution of the part- 
nership, of course he could not do so by acting through 
Knight, Under the evidence before the jury, we do not 
think the instruction could have prejudiced appellant. 

Appellant also contends that the third instruction given 
by the circuit court at the instance of the appellees is erro- 
neous. It is in these words : 

"The jury are instructed, even if they find from the evi- 
dence that the defendants were co-partners, under the name 
and style of 'E. F. Knight, Lessee/ and that E. F. Knight 
was their agent merely to transact business in the manufac- 
ture of brick, and not one of the partners, but that no direct 
or specific authority was given him to make or accept com- 
mercial paper, then the jury should find for the defendants; 
unless they further find, from the evidence, that said Talcott, 
Walker and Page, or one of them individually, ratified the 
making of the paper sued upon in this suit." 

The objection urged is, " if, in the instance of the accept- 
ances sued on, one of the partners caused the same to be ac- 
cepted by ' E. F. Knight, Lessee/ whether by Knight or a 
clerk, or some one not in the employ of the partnership, but 
the partner intending the name so appended to be an accept- 






122 Bank of Montreal v. Page. [March 

Opinion of the Court. 

ance, then acceptances so made would be binding, and the 
ratification by the other partners unnecessary." 

The objection to this is, as in the case of the last preceding 
instruction, there is no evidence tending to sustain it. There 
was no evidence tending to show that any one, in his capacity 
of partner, caused the acceptances to be made, and it clearly 
appears that at the date of the acceptances no one, as part- 
ner, had authority to make them, because the partnership 
claimed had been previously dissolved. 

It is also contended by appellant that the fourth instruc- 
tion given by the circuit court, at the instance of the appel- 
lees, is erroneous. It is this: 

" The jury are instructed that if they believe from the evi- 
dence that said defendants were co-partners as alleged in the 
declaration, and that said co-partnership was dissolved on 
the eighth day of November, 1875, by mutual consent of the 
defendants, and that one of said defendants, F. A. Bowen, 
was appointed by the others to close up the business, and 
that E. F. Knight's connection therewith thereupon ceased, 
and that afterwards said Knight, on the 20th day of Decem- 
ber, 1875, and the 15th day of January, 1876, respectively, 
accepted the drafts in question without any authority or rati- 
fication from said Talcott, Walker and Page, or either of 
them, then the jury should find for the defendants Talcott, 
Walker and Page, unless the jury should further find that 
said defendants Talcott, Walker and Page, had held them- 
selves out to said plaintiff as such partners, and that said 
Knight had authority to accept drafts for them, and that said 
plaintiff was ignorant of said dissolution." 

Appellant's position on this point is: "If there is a part- 
nership, the members of which are known to a party who 
discounts the partnership paper after a dissolution of which 
he is ignorant, the paper is binding on all of the partners, 
irrespective of the question whether some of them held 



1881.] Bank of Montreal v. Page. 123 

Opinion of the Court. 

themselves out as partners or not." But the evidence here 
fails to show that the members of the partnership were known 
to appellant previous to the dissolution on the 8fch of Novem- 
ber, 1875. It shows that " these drafts in question were 
given to the ' Redfield, Bowen & Walworth Co./ either di- 
rectly for goods supplied or labor performed, or in the re- 
newal of drafts given for that purpose." Concede that they 
were given as renewals of prior notes and drafts, the only 
evidence we have been able to find that appellant had infor- 
mation, at any time, of who composed "E. F. Knight, 
Lessee," is that of Bowen. He was asked this question: 
" I want to ask this question, whether you explained to Mr. 
Richardson," [the manager of appellant prior and down to 
January 10, 1876,] "who constituted E. F. Knight, Lessee, 
when you got this paper discounted by the Bank of Mon- 
treal?" There could be no misunderstanding of the time 
to which this question alluded. It was not when prior notes 
or drafts Avere discounted, but "when you got this paper" — 
i. e. y the paper here sued upon — " discounted." The answer 
was: "I think I did." 

Questions and answers then proceeded as follows : "Q. 
Are you sure of it? A. I think I did. Q. Are you sure of 
it? A. I generally explained the character of the papers 
that I took to them. Q. Did you inform Mr. Richardson 
that Mr. Page, Mr. Talcott, and Mr. "Walker and these other 
gentlemen formed the association expressed by ' E. F. 
Knight, Lessee Y A. I could not swear to that. Q. You 
may have, and you may have not? A. I could not swear to 
it, but I think I did, and I have no doubt of it. I think I 
did not explain to Mr. Munroe " [Richardson's successor] 
" that Page, Talcott and Walker and these other gentlemen 
formed this association, from the fact that he" [Munroe] 
"was guided by the advice of Mr. Richardson and the 
officers of the bank in regard to the company's paper. Q. Is 
it not a fact that the Bank of Montreal or its officers did not 
know, and asserted that they did not know, until a late 



124 Bank of Montreal v. Page. [March 



Opinion of the Court. 



period, of this association that you speak of? A. I don't 
know. Mr. Richardson knew of it. Q. Mr. Richardson 
knew of it? A. Yes, sir; and that was explained at the time. 
Q. Did you show him the articles of the association? A. I 
think not. I don't think I showed him any documents, as 
he was not in the habit of doubting my word at any time." 

It is impossible to say this shows that appellant knew, 
prior to the 8th of November, 1875, what persons constituted 
" E. F. Knight, Lessee." The evidence of notice is, at 
best, very unsatisfactory. The witness seems to speak more 
from inference or argument than from any recollection. 
He "will not swear," but he "believes — has no doubt," etc. 
This is not satisfactory evidence. But, apart from this, the 
only time mentioned in either question or answer, — and 
hence the only time it can be presumed the witness talked 
about, — was that at which these drafts were discounted. 

It is said the books of "E. F. Knight, Lessee," afford 
evidence that appellant had this knowledge. We do not 
so understand them. They show transactions with the 
Kedfield, Bowen & Walworth Co., discounting of drafts, etc., 
but they do not show that appellant knew who constituted 
" E. F. Knight, Lessee," nor does it appear that those books 
were, prior to November 8, 1875, submitted to the inspection 
of appellant's officers so that they should thereby be charged 
with knowing all that they disclosed. 

The name in which these drafts were accepted not disclos- 
ing that the defendants were in anywise connected with 
the acceptance, the mere fact that a prior note or draft, 
accepted or indorsed in the same name, was discounted by 
appellant, has, of itself alone, no tendency to prove that 
appellant was informed of the names of the defendants as 
those who constituted the acceptor. Appellant may have 
taken the papers on the assumed liability of E. F. Knight, 
alone, or of him and that of the "Eedfield, Bowen & Wal- 
worth Co." 



1881.] Bank of Montreal v. Page. 125 

Opinion of the Court. 

Since, by the resolution of the 8th of November, 1875, 
we hold that any partnership that may have previously ex- 
isted between the defendants, was dissolved, it follows that 
nothing that was done or said by Bowen, at the time the 
drafts were discounted, could bind the other defendants. 

There being no evidence tending to prove the state of facts 
relied upon by the plaintiff as requiring the qualification 
contended for to the principle announced in the instruction, 
appellant was not prejudiced by not having that qualification 
stated. Here, as in reference to the other instructions which 
we have discussed, there was no necessity to state principles 
of law having no basis in the evidence upon which to rest. 
As the facts were, the instruction could not mislead. 

Appellant also objects that the circuit court erred in refus- 
ing to give his instructions, numbered 3, 5 and 6, as asked. 

Ruling, as we do, that the resolution of the 8th of Novem- 
ber, 1875, was a dissolution of any prior existing partnership 
between the defendants, these instructions were each properly 
refused, upon the ground that in each it is assumed that the 
acceptances might have been made after, as well as before 
that date, by Knight, or by one of the defendants, so as to 
bind all of the defendants ; and neither of them is properly 
limited in respect of such dissolution. 

Although, on appeal from the Appellate Court, we are not 
authorized to go into questions of fact to ascertain where the 
preponderance is, it is, nevertheless, essential that we examine 
the evidence so far as to determine whether its tendency is 
such as to present a fair question of fact for the consideration 
of the jury, to which mooted points of law, embodied in or 
omitted from instructions, are applicable. 

We see no legal ground upon which the judgment below 
should be disturbed. It will, therefore,' be affirmed. 

Judgment affirmed. 



126 Hebblethwaite et al. v. Hepworth. [March 

Syllabus. Brief for the Appellants. 

Mary Hebblethwaite et al 
Mary Hepworth. 

Filed at Ottawa September 25, 1880 — Rehearing denied March Term, 1881. 

1. Marriage — who may contract marriage, and what constitutes that relation. 
Persons having a husband or wife living are not competent to contract mar- 
riage, and no presumption of a marriage can be indulged from cohabitation 
by such persons. 

2. The statute does not prohibit or declare void a marriage not solemnized 
in accordance with its provisions. A marriage without observing the statu- 
tory regulations, if made according to the common law, will be good. 

3. By the common law, if the contract be made per verba de presenti, it is 
sufficient evidence of marriage, or if made per verba de futuro cum copula, the 
copula will be presumed to have been allowed on the faith of the marriage 
promise, if at the time of the copula the parties accepted each other as hus- 
band and wife. It is the consent of the parties, and not the concubinage, 
that constitutes valid marriage. 

4. A contract of marriage per verba de futuro, while it may give an action, 
is not evidence of valid marriage; nor are the relations of the parties 
changed by the fact that cohabitation may have followed the pi-omise to marry 
at a future time. ■ A contract of marriage in the future, even when the par- 
ties may afterwards cohabit, is not understood to constitute marriage, unless 
the parties at the time of the cohabitation accept each other as husband and 
wife, and so conduct themselves that that relation is understood and 
acquiesced in by relatives and other acquaintances. 

/ 
Appeal from the Circuit Court of Cook county ; the Hon. 
Murray F. Tuley, Judge, presiding. 

Mr. H. B. Hurd, for the appellants: 

The prime requisite of a valid marriage under our law is 
the interchange between the parties of a mutual present con- 
sent to take each other as husband and wife. For this con- 
sent there is no substitute or equivalent. Port v. Port, 70 
111. 484; Clayton v. War dell, 4 Comstock, 230; Lord Camp- 
bell in Queen Y.Mlllis, 10 Clark <fc Fiimelley, 749; Williams 
v. Williams, 46 Wis. 464. 



1881.] Hebblethwaite et al v. Hepworth. 127 

Brief for the Appellants. 

The modes of proving the existence of such consent are 
various, but they should never be confounded with the con- 
sent itself, which is always the same. Shedden v. Patrick, L. 
E. (1 H. L. Pr. & Div.) 540, 541. 

Proof of cohabitation as husband and wife does not con- 
stitute marriage. It may in some cases be evidence of mar- 
riage, but can never be anything more; "consensus non con- 
cubitus facit nuptias" is the universally received maxim. 
Port v. Port, 70 111. 484; Shedden v. Patrick, ubi sujwa; 
Letters v. Cody, 10 Cal. 583; Jackson v. Winne, 7 Wend. 47; 
Cheney v. Arnold, 15 N. Y. 345; Duncan v. Duncan, 10 
Ohio St. 181. 

If the agreement is not one of present consent to accept 
each other as husband and wife, but is per verba de futuro, 
looking to a marriage at some future time, it not only fails 
to prove actual marriage, but by its very terms excludes any 
such conclusion. Lord Cottenham in Stewart v. Menzies, 
2 Pol. App. Cases, 547, 590; Cheney v. Arnold, 15 K Y. 
345; Foster v. Hawley, 15 Hun, (N. Y.) 68; Bundle v. Pe- 
gram, 49 Miss. 751 ; Floyd v. Calvert, 53 Miss. 37. 

Divided reputation is not sufficient proof of marriage. 
The repute should be open and general, and prevail among 
the friends and relatives of both parties. Floyd v. Calvert, 
53 Miss. 37; Yardley's Estate, 75 Penn. St. 207; Clayton v. 
Wardell, 4 Comstock, 230; Backing's Appeal, 2 Brewster, 
202. 

If cohabitation is illicit in its origin, there is a necessary 
presumption that the connection continues meretricious, un- 
less there is some evidence that the character of the relation 
has been changed. Williams v. Williams, 46 Wis. 464; Cun- 
ningham v. Cunningham, 2 Dow, 483 ; Stewart v. Bobertson, 
Law Kep. 2 Sc. Ap. 494, S. C; Yardley's Estate, 75 Penn. 
St. 207 ; Commonwealth v. Stump, 53 id. 132; Bicking's Ap- 
peal, 2 Brewst. (Pa.) 202 ; Wright v. Wright, 48 How. Pr. 
(K Y.) 1; Barnum v. Barnum, 42 Md. 257; Bed grave v. 
Bedgrave, 38 id. 93; Jackson v. Claw, 18 Johns. 346; 2 



128 Hebblethwaite et al. v. Hepworth. [March 

Brief for the Appellee. 

Greenleaf on Evidence, § 464; 2 Kent's Commentaries, 87; 
Port v. Port, 70 111. 484; Jones v. Jones, 45 Md. 144; Floyd 
v. Calvert, 53 Miss. 37 ; Bundle v. Pegram, 49 id. 751. 

When the cohabitation is illicit in its origin, the circum- 
stances in favor of marriage must be such as to exclude the 
inference or presumption that the former relation continued. 
Fisher v. Hawley, 8 Hun, (N, Y.) 65, 72; Williams v. 
Williams, 46 Wis. 464. 

Mr. James S. Murray, for the appellee : 

Marriage may be proved by reputation, declaration and 
conduct of the parties. 2 Greenleaf on Evidence, § 462; 
Bishop's Marriage and Divorce, §§ 434, 438, 439; Hyatt v. 
Myatt, 40 111. 474; Port v. Port, 70 id. 484; Miller et al v. 
White, 80 id. 580. 

Every intendment of law is in favor of marriage. Bishop 
on Marriage and Divorce, § 459 ; Piers v. Piers, 2 H. L. 
Cases, 321 ; Campbell v. Campbell, 1 Law Rep. Scotch and 
Divorce Appeals; Hervey v. Hervey, 2 W. Blackstone, 877; 
King v. Twining, 2 Barn. & Aid. 386 ; Fenton v. Peid, 4 
Johns. 52; Jackson v. Claw, 18 id. 346; Starr et al. v. 
Peck, 1 Hill, 270; In re Taylor, 9 Paige, 610; Caujolle v. 
Ferrie, 23 K Y. 91; Tumalty v. Tumalty,Z Bradford, 369; 
Town of Greensborough v. Underhill, 12 Vt. 604; Carroll v. 
Carroll, 20 Texas, 731; Hutchins v. Kimmell, 31 Mich. 130; 
State v. Worthingham, 31 Minn. 539; Hyde v. Hyde, 3 
Bradford (N. Y.) 509; Grotgen v. Grotgen, 3 id. 373; 
Yates v. Houston, 3 Texas, 433; Kelly v. Drew, 12 Allen, 
110; Hull v. Pawls, 27 Miss. 471 ; /Spears v. Benton, 31 id. 
547; Chapman v. Cooper, 5 Rich. (S. C.) 452; Nathan's case, 
2 Brewster (Pa.) 149; Pwrceft v. Purcell, 4 Hen. & M. 507. 

Verbal admissions, purporting to have been made after a 
controversy has arisen, are entitled to little weight. In re 
Taylor, 9 Paige, 610; Nathan's case, 2 Brewster (Pa.) 149; 
1 Greenleaf on Evidence, sec. 200. 



1881.] Hebblethwaite et al. v. Hepworth. 129 

Opinion of the Court. 

The presumption of innocence overcomes the presumption 
of life, even where the absence falls short of seven years. 
Bishop on Marriage and Divorce, sec. 452; Hex v. Twining, 
2 Barn. & Aid. 386; Jackson v. Claw, 18 Johnson, 346; 
Gates v. Houston, 3 Texas, 433 ; Kelly v. Drew, 12 Allen, 110; 
Hull, Admr. v. Bawls, 27 Miss. 471; Spears v. Burton, 31 id. 
547; Chapman v. Cooper, 5 Eichardson ($. C.) 452; Town of 
Greensborough v. Under hill, 12 Vt. 604; Carroll v. Carroll, 
20 Texas, 731. 

Mr. Justice Scott delivered the opinion of the Court : 

The eventful and sad history of complainant has induced 
a most careful consideration of the entire record in this case. 
Equitable considerations would seem to demand an affirm- 
ance of the decree of the circuit court, if any tenable ground 
could be discovered on which to base such a decision. The 
bill is for partition and dower in the lands alleged to belong 
to the estate of Henry Hepworth, deceased, and was brought 
by Mary Hepworth, claiming to be his widow. The decedent 
left no child or descendants of any child. Defendants are 
his collateral heirs. No question is made, if complainant is 
the widow of the intestate, she would be entitled to one-half 
of the real estate of which the intestate died seized, and 
dower in the other half. Most important of all questions 
made on the record is, whether complainant was the wife of the 
intestate, as she alleges she was, and to that inquiry Ave will 
direct our investigation. All the parties were English peo- 
ple, and, before ' coming to America, resided in Leeds, 
England. Decedent, Henry Hepworth, had a wife, with 
whom he resided up to the time he left England to come 
to this country, and complainant had been and was a 
married woman before leaving England. Her husband had, 
however, been transported, under judicial sentence, for 
"poaching," for a period of fourteen years. A party, consisting 
of the intestate, complainant and a married daughter of com- 
plainant and her husband, and, perhaps, one child, came on the 
9—98 III. 



130 Hebblethwaite et al. v. Hepworth. [March 



Opinion of the Court. 



same vessel to New York. On their arrival, the daughter 
testifies, decedent and complainant went out to get married, 
and, on their return, declared that they were married. Im- 
mediately thereafter they all started West. That was in 1847. 
Soon after their arrival in Chicago, decedent secured a farm 
near the village of Evanston, in Cook county, where he and 
complainant resided together as husband and wife until 1856. 
It was in that year a Mrs. Marshall, a foster daughter of de- 
cedent, came to visit them. It was not long afterwards 
until the true relations of the parties became known to the 
public, and decedent was arrested on complaint for living in 
an open state of adultery with complainant. The prosecution 
does not seem to have been pressed. Some settlement was 
made between the parties, and decedent paid complainant 
$300. The agreement between them was evidenced by writ- 
ing and signed by complainant, in which the payment of the 
money was acknowledged, and also the justness of the accus- 
ation against them. It was distinctly stated they were not 
husband and wife, and the fact of the former marriage of both 
parties was also stated. After the settlement they lived apart, 
as was the agreement. Complainant went out to service for a 
brief period in Chicago, but soon returned to Evanston, where 
she secured a home of her own, and maintained herself and 
grandson, who resided with her, by her own labor. 

While complainant and decedent lived on the farm together, 
she did such work as farmers' wives usually do, and, in addi- 
tion thereto, she often worked in the field. By their united 
labor and the exercise of economy, Hepworth acquired a con- 
siderable property, aggregating many thousand dollars. It 
is shown complainant is an uneducated woman, being unable 
either to read or write, but she was always kindly regarded 
by all her neighbors with whom she was acquainted. She 
was a member of one of the principal Methodist churches of 
the village of Evanston, and during her long residence in 
the midst of that people, nothing was ever alleged against her 
character, barring her relations with the intestate. She is 



1881.] Hebblethwaite et al. v. Hep worth. 131 

Opinion of the Court. 

now nearly or quite eighty years old, broken in health and 
dependent on public charity for support. 

Evidence introduced shows, that in 1864 Hepworth 
obtained a divorce from his wife, then residing in England. 
The divorce was obtained in one of the courts of Cook 
county, but the record was destroyed in 1871, by the fire that 
destroyed all the public records of that county. It is suffi- 
ciently proved, however, that the divorce, for some cause not 
disclosed, was, in fact, granted. It is made to appear, that 
from the time of their separation in 1856, until 1866, the par- 
ties lived separate and apart. During that period complain- 
ant supported herself, as well as she could, by her own 
labor and with the assistance of such aid as the public authori- 
ties of the town kindly bestowed on her. 

In 1865, Hepworth came to the house of complainant, 
after she had retired for the night, and, on obtaining admis- 
sion, he made a proposition to live with her again. She dis- 
tinctly informed him, at that time, she would not consent to 
his proposition unless he would marry her, and one reason 
she assigned was, that unless he did it would injure her with 
the neighbors, who had been very kind to her. He assured 
her that he would, and that he had never before been in a 
condition when he could lawfully marry her. He continued 
to visit her frequently at her house, but always returned 
every night to his own lodgings, until sometime in 1866, when 
he came to reside permanently with complainant at her own 
house. After taking up his residence with her decedent provi- 
ded for the family, and they cohabited as husband and wife, 
and seem to have been so treated by their neighbors. These 
relations continued between them until 1876, when decedent 
left home with a view, as he told her, to visit the "Centennial 
Exhibition," but, in fact, to go to England, which he did. He 
never returned to the house of complainant. After his return 
to Evanston in the spring of 1877, he made his home with his 
niece, one of the defendants, until his death, which occurred 
later in the same year. 



132 Hebblethwaite et at. v. Hepwobth. [March 

Opinion of the Court. 

Prior to the separation of the parties in 1855 or 1856, it 
can hardly be claimed the relation of marriage existed be- 
tween them. Neither of them was competent to contract 
marriage. Both had previously been married, and the fact 
was well known to each of them. Complainant had been in 
the employ of decedent while they resided in England, and 
she was fully aware, when she fled the country with him, of 
the fact that his wife was still living. But, aside from these 
undisputed facts which forbid the idea of legal marriage, both 
of them conceded, at the time of his arrest on the charge of 
living in an open state of adultery, they had never been mar- 
ried. Living separate and apart from decedent, she assumed 
her former name, that of her husband, Greenwood, and by 
that name was most generally known. Up to that time the 
relations of the parties were plainly meretricious and unlaw- 
ful, — a fact conceded by both parties in the most solemn 
manner. 

The only question in the case that presents any difficulty is 
whether, on the second coming together of the parties, there 
was any valid marriage. It is not claimed there was any 
ceremonial marriage, and if any such relation existed between 
them it must have been a marriage as at common law. It is 
not necessary now to enter upon any discussion as to what 
constitutes valid marriage. In the recent case of Port v. Port, 
70 111. 484, this court had occasion to investigate the subject, 
and the conclusion there reached was, our statute does not 
prohibit or declare void a marriage not solemnized in accord- 
ance with its provisions, but that a marriage without observ- 
ing the statutory regulations, if made according to the com- 
mon law, would be valid. The true relations between the 
parties is always a matter of evidence. 

By the common law, if the contract be made per verba de 
presently it is sufficient evidence of marriage; or if made_per 
verba defuturo cum copula, the copula would be presumed to 
have been allowed on the faith of the marriage promise, so 
that at the time of the copula the parties accepted each other 



1881.] Hebblethwaite et at. v. Hepworth. 133 

Opinion of the Court. 

as husband and wife. On this subject the maxim of the law 
is inexorable, that it is the consent of parties, and not their 
concubinage, that constitutes valid marriage. The well being 
of society demands a strict adherence to this principle. 

It can not be maintained there was any contract between 
the parties to marry per verba de presenti. The utmost the 
evidence shows is, that on the occasion of his first visit to 
complainant, in 1865, he did promise to marry complainant. 
But it was to be at some future period. That promise was 
never fulfilled. This, we think, is plain, from the subsequent 
conduct of the parties. After that promise was made dece- 
dent visited her frequently at her house for a period of eight 
months or a year before he went to live with her again. It 
is true, that afterwards they did live and cohabit together as 
husband and wife, but under what contract, if any, does not 
appear. On this branch of the case the evidence is silent. 
There is no more propriety in referring their conduct to mar- 
riage than to concubinage. Indeed, her admissions, made 
when it was to the interest of complainant to declare other- 
wise, indicate the latter was the relation they bore to each 
other. To some of her most intimate and best friends she 
admitted she was not married, — that he had been " putting 
her off from time to time." These admissions were made 
shortly before and after the death of the intestate. This 
view of the case is greatly strengthened by the fact that on 
account of their adulterous conduct, the intestate had been 
arrested and the parties compelled to live apart. It is strange 
that, after their experience, when they came together 
again, if it was under a promise of marriage, it was not cele- 
brated in the usual way, according to the custom of the 
country, by a clergyman or a magistrate, under a license, that 
a record might be made. But nothing of the kind was done. 
All that is proven, if we give to the evidence the most favor- 
able construction, is, that he promised to marry complainant 
. but he died before fulfilling that engagement. A contract of 
marriage per verba de futuro, while it may give an action, is 



13-1 Eedlich v. Bauerlee. [March 

Syllabus. 

not evidence of valid marriage. Nor are the relations of the 
parties changed by the fact that cohabitation may have fol- 
lowed the promise to marry at a future time. Port v. Port, 
supra. 

A contract of marriage in the future, even where the par- 
ties may afterwards cohabit, is not understood to constitute 
marriage, unless where, at the time of the cohabitation, the 
parties accept each other as husband and wife, and so conduct 
themselves that that relation is understood and acquiesced in 
by relatives and other acquaintances. Such was not the case 
here. Even the reputation as to the relation of the parties 
was divided in the neighborhood where they resided. Some 
thought they were married, but others did not. But it does 
not appear the parties, or either of them, ever understood 
they were, in fuct, married. Her admissions, clearly and 
understandingly made, are to the contrary, and we are not at 
liberty to declare otherwise. 

The decree will be reversed, and the bill dismissed. 

Decree reversed. 



Henry Eedlich 

v. 

Leonhard Bauerlee. 

Filed at Ottawa November 20, 1S80 — Rehearing denied March Term, 1881. 

1. Assignment of error in Supreme Court. Where a judgment was ren- 
dered in the trial court upon the report of referees, in excess of the plain- 
tiff's bill of particulars and affidavit of merits, and on appeal to an Appellate 
Court error was not assigned thereon, the party will be precluded from 
alleging that matter as ground of error in this court. The recoi'd should, 
show affirmatively that the question was made in the Appellate Court in order 
to obtain a ruling upon it here. 

2. Evidence — party's books of account — as to original entries. Where 
charges are in the first instance made upon a slate, but within a reasonable 
time thereafter transferred by the proprietor and his clerk, and these care- 



1881.] Eedlich v. Baueelee. 135 

Brief for the Appellant. 

fully compared with the entries on the slate, so as to make it certain they 
were correctly copied into the boohs, the books, on proof of these facts, will 
be admissible in evidence in behalf of the proprietor — the minutes upon the 
slate being regarded as mere memoranda to aid the memory until the items 
should be transferred to the books. 

3. To admit charges on a party's books transferred from minutes originally 
made upon a slate, as evidence as to the items therein shown, it is sufficient 
if the entries were transferred within a reasonable time, so that it may ap- 
pear to have taken place while the memory of the facts was recent, or the 
source from which a knowledge of the matters was derived was unimpaired, 
and it is shown the entries on the slate were made when the goods were de- 
livered. 

Appeal, from the Appellate Court for the First District; — 
heard in that court on appeal from the Circuit Court of Cook 
county; the Hon. John G. Rogers, Judge, presiding. 

Messrs. Lyman & Jackson, for the appellant: 
The judgment is for a greater sum than is claimed in the 
plaintiff's affidavit and bill of particulars, and this is not the 
result of any charge of interest. Brooks v. Town of Jackson- 
ville, 1 Scam. 568. 

The books admitted in evidence were not books of original 
entries, because : 

1. The entries were not made at or near the times of the 
sale and delivery of the goods. 

2. The entries themselves were only memoranda of 
goods manufactured and expected to be sold to Redlich, and 
not of goods sold and delivered. 

3. The entries were not transferred from the slate to the 
book until weeks after many of them were made. 

The book itself must be the registry of business actually 
done, and not of orders executing contracts and things to be 
done subsequent to the entry. Fairchild v. Denison, 4 Watts, 
258 ; Wilson v. Wilson, 1 Halst. 95 ; Bradley v. Goodyear, 1 
Day, 154; Terrill v. Beecher, 9 Conn. 344; 1 Greenleaf on 
Evidence, p. 142, note, 12th ed. 

The entries must be made at or near the time of the trans- 
action to which they relate, citing Landis v. Turner, 14 Cal. 



136 Eedlich v. Bauerlee. [March 

Brief for the Appellee. Opinion of the Court. 

576 ; McCoy v. Lightner, 2 Watts, 351 ; Kessler v. Monoclay, 
1 Rawle, 440; Vance v. Feariss, 1 Yeates, 321; Forsythe v. 
Norcross, 5 Watts, 432; Vicary v. Moore, 2 id. 458 ; Buggies 
v. Gallon, 50 111. 417; Presbyterian Church v. Emerso7i } 60 
id. 271 ; Kibbe v. Bancroft, 77 id. 18. 

Mr. C. C. Kohls A at, for the appellee : 

The first point not having been made to the record in the 
Appellate Court, can not be made in this court for the first 
time. Thayer v. Peck, 93 111. 357. 

But the books are books of original entry, and competent. 
Keppleberg did all the writing on the slate. When he was 
absent, as he sometimes was, perhaps six days in the year, 
appellee would keep a memorandum, and then, giving it to 
Keppleberg on his return, see him enter it on the slate, 
which was a double one. Appellee once a month copied the 
same into his books, and after carefully comparing the slate 
and the book next day with Keppleberg, the slate entries 
Avere rubbed out. It has been long held that books made up 
in this way, the slate entries being memoranda, are books of 
original entry. Faxom v. Hollis, 13 Mass. 427; Whitney v. 
Sawyer, 11 Gray, 243-4. Even after the lapse of four weeks. 
Hall v. Glidden, 39 Me. 446. After the lapse of three days. 
Jefferis v. Urmy, 3 Houston, 653. After the lapse of nine 
days. Moi-ris v. Briggs, 3 Cushing, (Mass.) 343; Filkins v. 
Baker, N. Y. Supreme Court, vol. 6 (Lansing), 519. 

But even if the books were incompetent, having been by 
the appellee submitted to appellant, they became competent. 
Darlington v. Taylor, 3 Gr. (Penn.) 195. 

Mr. Justice Scholfield delivered the opinion of the 
Court: 

Of the four errors assigned upon this record, there is but 
one that we can inquire into. The third and fourth present 
questions of fact only, and the finding of the Appellate Court 
is conclusive as to them. 



1881.] Eedlich v. Bauerlee. 137 

Opinion of the Court. 

The second is ; "that the referee finds a balance due from 
the defendant to the plaintiff, and the court rendered judg- 
ment for §2,733.20, while the plaintiff's bill of particulars 
only showed and claimed a balance of $2,673.98, and the 
plaintiff's affidavit of merits, sworn toby himself, also claims 
only the same amount to be due." This was not assigned for 
error in the Appellate Court, and it does not appear that 
court ever had an opportunity to pass upon it. We are now 
reviewing the rulings of that court, and not the rulings of 
the circuit court. The record should affirmatively show 
that this question was raised in the Appellate Court in order 
to obtain a ruling upon it here. Thayer v. Peck, 93 111. 357. 

The remaining error, the first, in the order of the assign- 
ment, is " that the referee admitted the plaintiff's books of 
account, which were not books of original entries, in evi- 
dence, and his finding against the defendant was based 
chiefly upon said books of account." 

Appellee produced his books of account and testified that 
they were such, and that the entries therein were made by 
himself, and that they were true and just. It is proved by 
his evidence and that of his foreman, Charles Keppleberg, 
that the books were kept in this way: 

As the goods, which were pressed blocks, plugs,bungs, fau- 
cets, etc., were manufactured by appellee for appellant, Kep- 
pleberg counted them into barrels belonging to appellant, and 
wrote down the count on a double slate kept for that 
purpose. No one but Keppleberg kept the slate. Once a 
month, Keppleberg would deliver the slate to appellee, who 
would take it home in the evening, and copy the entries on 
the slate into his book and return it next morning. Appel- 
lee and Keppleberg would then compare the slate and the 
book, and, finding the book correct, they would rub out the 
entries on the slate. This comparing, the witnesses say, was 
very carefully done. When Keppleberg was absent, which 
happened only a few days in the year — at the outside, six 
days, — appellee would make a memorandum of the account 



138 Kedlich v. Baueelee. [March 

Opinion of the Court. 

and give it to Keppleberg to enter on the slate when he 
returned, and he saw Keppleberg write down what he gave 
him. Appellee put down the prices when he entered the 
items in his books. 

The evidence of Keppleberg is, that appellant received all 
the goods with which he is charged. 

We think, on this preliminary evidence, the books were 
properly admitted. The fact that the charges, in the first 
instance, were made on a slate and were subsequently trans- 
ferred to the books admitted in evidence, does not destroy 
the character of the books as those of original entries. The 
minutes on the slate were mere memoranda, to assist the 
memory until the items were transferred to the books, and 
were not intended to be permanent. Faxom v. Hollis, 13 
Mass. 427; Pillsbury v. Locke, 33 N. H. 96; Hall v. Glid- 
den, 39 Me. 445; Stroud v. Tilton, 3 Keys, 139; Sickles v. 
Mathers, 20 Wendell, 72; Davison v. Powell, 16 Howard (N. 
Y.) 467; Landis v. Turner, 14 Cal. 575; Hartley v. Brooks, 
6 Wharton, 189; Whitney v. Sawyer, 11 Gray, 243. 

Although the entries were drawn off by appellee, the sub- 
sequent comparison of the entries upon the slate with those 
in the books, made it certain that they were correctly copied 
into the books. The authorities do not establish any precise 
length of time within which such entries shall be tran- 
scribed; " it suffices if it be within a reasonable time, so that 
it may appear to have taken place while the memory of the 
fact was recent, or the source from which a knowledge of it 
was derived is unimpaired. " Jones v. Long, 3 Watts, 325; 
Hall v. Glldden, supra. Here, as in Hall v. G Udder), the 
source of knowledge was unimpaired, and there is no reason 
to believe the memory of the facts to have been forgotten 
when transcription was made. The entry on the slate was 
at the time the goods were delivered, " and from the nature 
of the case it could not be permanent. It had not been 
obliterated" — and if the evidence of the witnesses who 
testified in regard to this matter, may be relied upon, there 



1881.] Coalfield Company v. Peck. 139 

Syllabus. 

can be no doubt that the entries in these books against appel- 
lant are correct charges. 

We think the preliminary proof brought the books within 
the spirit of the 3d section of the "act in regard to evidence 
and depositions in civil cases," in force July 1, 1872, Revised 
Statutes of 1874, p. 489; and there was, therefore, no error in 
admitting them in evidence. The judgment of the Appel- 
late Court is affirmed. 

Judgment affirmed. 



The Coalfield Company, for use, etc., 

v. 

Ferdinand W. Peck. 

Filed at Ottawa September 25, 1880— Rehearing denied March Term, 1881. 

1. Stockholders — of the remedy to enforce liability of stockholders in suit 
by a creditor of the corporation. Under section 8 of the act of 1872, entitled 
Corporations, making stockholders liable to creditors of the corporation to the 
extent of their unpaid stock, to be proceeded against at the same time, as in 
cases of garnishment, it is not essential that a stockholder or stockholders 
should be proceeded against at the same time the suit is brought against the 
corporation, as in garnishee proceedings under the Attachment act. The in- 
tention of the act is to give the remedy as ample and complete as in cases of 
garnishment known to the laws of the State, including the process after 
judgment. 

2. Same — stockholder can not attack a judgment against corporation as 
collusive, at law. Under the act of 1872 making stockholders liable for unpaid 
stock to creditors of the corporation, a stockholder when sought to be made 
liable can not attack the judgment recovered against the corporation on the 
ground that it is collusive and unjust. If he can attack the judgment on 
that ground, he must do so in a court of chancery. 

3. Practice — on reversal Appellate Court must find the facts. Where the 
judgment of the Appellate Court is made as the result, wholly or in part, of a 
finding of facts different from the finding in the trial court, it is made the 
duty of the Appellate Court to recite in its final order, judgment or decree, 
the facts found by it. If it does not, and no error of law is found in the 
record of the trial court, a judgment of reversal by the Appellate Court will 
be erroneous. 



140 Coalfield Company v. Peck. [March 

Opinion of the Court. 

Appeal from the Appellate Court for the Second District; 
— heard in that court on appeal from the Circuit Court of 
Will county ; the Hon. Francis Goodspeed, Judge, pre- 
siding. 

Mr. George S. House, and Mr. A. O. Marshall, for the 
appellant. 

Messrs. Cooper, Packard & Gurley, for the appellee. 

Mr. Justice Sheldon delivered the opinion of the Court: 

On the 7th day of November, 1877, H. Leroy Thayer, for 
whose use this proceeding is prosecuted, recovered a judg- 
ment, in the Will circuit court, against the Coalfield Coal 
Company, for $5963.30, and an execution issued thereon hav- 
ing been returned " no property found," he, on the 27th day 
of December of the same year, sued out of said court a gar- 
nishee summons against Peck as a stockholder in said com- 
pany. 

Interrogatories were filed, and answered by the garnishee, 
and, upon the hearing, judgment was rendered against the 
garnishee, which, upon appeal to the Appellate Court for the 
Second District, was reversed, whereupon an appeal was 
taken to this court. 

The liability which is attempted here to be asserted is 
under the 8th section of the act of 1872 (R. S. 1874, p. 287), 
entitled "Corporations," which is as follows: 

"Every assignment or transfer of stocks on which there 
remains any portion unpaid, shall be recorded in the office 
of the recorder of deeds of the county within which the 
principal office is located, and each stockholder shall be liable 
for the debts of the corporation to the extent of the amount 
that may be unpaid upon the stock held by him, to be col- 
lected in the manner herein provided. No assignor of stock 
shall be released from any such indebtedness by reason of any 
assignment of his stock, but shall remain liable therefor 



1881.] Coalfield Company v. Peck. 141 

Opinion of the Court. 

jointly with the assignee until the said stock be fully paid. 
Whenever any action is brought to recover any indebtedness 
against the corporation, it shall be competent to proceed 
against any one or more stockholders at the same time, to 
the extent of the balance unpaid by such stockholders, upon 
the stock owned by them respectively, whether called in or 
not, as in cases of garnishment. Every assignee or trans- 
feree of stock shall be liable to the company for the amount 
unpaid thereon, to the extent and in the same manner as if 
he had been the original subscriber." 

The position which is taken by appellee is, that this proceed- 
ing in garnishment after judgment, which has been adopted 
in this case, does not lie at all under this 8th section ; that 
the only garnishee proceeding meant by the statute is that 
of garnishment as in original attachment, and that the only 
way in which the stockholder can be proceeded against and 
subjected under this section, is by suing out a summons 
against him at the same time the creditor's suit is instituted 
against the corporation. This construction is based upon the 
words "at the same time," which occur in the section in the 
connection that "it shall be competent to proceed against any 
one or more stockholders at the same time," it being con- 
tended that these words, "at the same time," relate to the time 
of bringing any action to recover any indebtedness against 
the corporation, and are exclusive of all remedy otherwise 
than in the particular way of commencing proceedings against 
the garnishee at the same time suit is brought against the 
corporation. The Appellate Court sustained this view of the 
case. 

We think the. above a too contracted interpretation of the 
statute. 

The statute declares, unequivocally, that " each stockholder 
shall be liable for the debts of the corporation to the extent 
of the amount that may be unpaid upon the stock held by 
him, to be collected in the manner herein provided," which 
is, as we read it, " as in cases of garnishment." : 



142 Coalfield Company v. Peck. [March 

Opinion of the Court. 

Now, there were two modes known to our law by which, 
through garnishment, a debt owing by another to a judgment 
debtor might be reached and made subject by the judgment 
creditor to the payment of his judgment. 

One is provided for in the act entitled " An act in regard 
to attachments in courts of record," where, in the special 
proceeding by attachment, there is included in the writ of 
attachment a garnishee summons to any one claimed to be 
owing a debt to the attachment debtor. 

The other is in the act entitled "An act in regard to gar- 
nishment," where,when there has been a judgment obtained and 
an execution has been issued on it and returned "no property 
found," provision is made for the issue of summons against 
any person supposed to be indebted to the judgment defend- 
ant, to appear as a garnishee, whereby any debt owing by 
him to the defendant in such judgment, may be subjected to 
the payment of the judgment. The latter mode was the one 
pursued in the present case. 

It is difficult to believe that in this 8th section of the Cor- 
poration act, subjecting unpaid stock to a liability for the 
debts of the corporation, with provision for enforcing the 
liability " as in cases of garnishment," reference was had to 
the act in regard to attachments alone, and not at all to that 
distinctive statute entitled "An act in regard to garnishment," 
and that, instead of giving the remedy "as in cases of gar- 
nishment," it is to be construed as having been given as but 
in the one case of garnishment — that in an attachment pro- 
ceeding; and that the garnishee process can be taken out 
only at the same time of the commencement of the suit 
against the corporation. 

By the Corporation act stockholders are made liable for the 
debts of the corporation to the extent of their unpaid stock, 
the manner of its collection to be as in cases of garnishment. 
We think the intention was, to give the remedy full and am- 
ple as in cases of garnishment, and that the reasonable and 
true construction is, that the remedy is given to the full ex- 



1881.] Coalfield Company v. Peck. 143 

Opinion of the Court. 

tent, as recognized in any case of garnishment known to our 
law. We regard it as a too narrow view, which would make 
this important remedy of the creditors of a corporation to 
rest upon the seemingly non-essential circumstance of the 
taking out of the process of garnishment at the same time 
the creditor commences his suit against the corporation. 

It is suggested there was reason for a provision that the 
stockholder should only be liable as garnishee, where the 
garnishee process was issued at the same time of the creditor's 
suit against the corporation, as there would thereby be 
afforded an opportunity to the stockholder to see that 
defence was made to the claim preferred against the corpora- 
tion. There could hardly be imputed to the legislature a 
purpose of such kind. Such a purpose would be at odds 
with the whole theory of the law of corporations. 

The stockholder would have no control over the suit 
against the corporation. The corporation has its representa- 
tive officers, who, in legal contemplation, are all-sufficient, for 
the protection of the interests of the corporation. The just- 
ness of any particular claim for which suit should be brought 
against a corporation would form no element of the stock- 
holder's liability. It would seem to be indifferent to him to 
whom he paid the amount of his unpaid subscription, whether 
to the creditor bringing any particular suit against the cor- 
poration, or to any other creditor, or to the corporation itself. 
His only concern would appear to be, that he should not 
have to pay his subscription for stock more than once. 

To be sure, the words of the section, "at the same time," 
create some ambiguity, whether they refer to the time when 
action is brought to recover any indebtedness against the 
corporation, or not. They do not, we think, necessarily 
refer to such time. They may be taken to refer to the pro- 
cedure against the stockholders — that it shall be competent 
to proceed against any one or more stockholders at the same 
time; or they may perhaps be taken to refer to the same time 
of pendency of proceeding against the corporation, and not 



144 Coalfield Company v. Peck. [March 

Additional opinion of the Court. 

of the commencement of the suit against the corporation. 
And we are disposed to hold that they do not refer to the 
same time of the commencement of the suit, so as to make 
the taking out of a garnishee summons at that particular 
time essential to the remedy which is given by the statute. 
The judgment is reversed and the cause remanded. 

Judgment reversed. 

Mr. Justice Scott dissenting. 

Subsequently, upon an application for a rehearing, the 
following additional opinion was filed: 

Per Curiam: This is an application, by Peck, for a 
rehearing. The application must be denied. 

When the case was considered, we found that the circuit 
court had found the issues of fact against Peck, and rendered 
judgment thereon. The Appellate Court reversed this judg- 
ment, making no, remanding order. 

On examination of the record of the Appellate Court, we 
found that court did not "recite in its final order or judg- 
ment the facts as found " by that court. The statute pro- 
vides, that "if any such final judgment of the Appellate Court 
shall be made as the result wholly or in part of a finding of 
facts * * . * different from the finding of the court from 
which the cause is brought," * * * it shall be the duty 
of such Appellate Court "to recite in its final order, judgment 
or decree the facts as found." 

In the absence of such recital, this court could not properly 
decide the case upon the hypothesis suggested, that the judg- 
ment of the Appellate Court was founded, in any respect, 
upon a finding of facts different from the finding in the court 
below. We, therefore, examined the questions of law found 
in the record of the circuit court and found no error therein. 

Finding no error of law in the record of the circuit court, 
and no error of fact being shown in the only manner pro- 
vided by law for showing the same, the judgment of the 



1881.] Coalfield Company v. Peck. 145 

Additional opinion of the Court. 

Appellate Court was necessarily reversed. A copy of the opin- 
ion of the Appellate Court was brought to our attention in- 
dicating that the Appellate Court did take a view of the facts 
different from the findings in the circuit court, and we were 
asked to affirm on that ground. We are not at liberty, in 
deciding a case, to look beyond the record, and hence could 
not properly consider the opinion of the court for such pur- 
pose. 

"We therefore remanded the cause to the Appellate Court 
without specific directions, leaving the case in such condition 
that the Appellate Court might take action in accord with the 
law as laid down by this court. If, when the case comes 
again before that court, the facts are held by the Appellate 
Court to be different from the finding in the circuit court, 
that court may, of course, found its judgment upon such 
different finding, and the facts so found in such case must be 
recited in the judgment. If the facts be found by the Appel- 
late Court in accord with the finding in the circuit court, in 
such case the judgment of the circuit court should, of course, 
be affirmed by the Appellate Court. 

It will thus be seen that our failure to pass upon the ques- 
tion relating to the alleged payment is no ground for a re- 
hearing. 

Again, a rehearing is sought upon the ground that (as is 
claimed) the judgment of Thayer against the coal company 
was collusive and unjust. This, too, is a question of fact. 
And as to the question whether Peck can be permitted, as 
garnishee, to attack that judgment, we think he can not; and 
if he can attack that judgment as a subscriber to the stock or 
as a shareholder, he must do that in a court of chancery. 

Finding no sufficient reason for a rehearing, the petition is 

denied. 

Petition denied. 



10—98 III. 



146 Carbine v. Fox. [March 

Syllabus. Opinion of the Court. 



Thomas Carbine 
v. 
Osmond Fox. 

Filed at Ottawa March 16, 1S81. 

Appeal from or error to Appellate Court — sale under power in mortgage — 
whether a freehold involved. Where the Appellate Court affirms a decree of the 
circuit court enjoining the sale of land under a power in a mortgage, on the 
ground of payment, and the amount in controversy is under $1000, a writ of 
error will not lie from this court to the Appellate Court. In such case there 
is no right of freehold involved. 

"Writ of Error to the Appellate Court for the First Dis- 
trict; — heard in that court on appeal from the Circuit Court 
of Cook county; the Hon. W. W. Farwell, Judge, pre- 
siding. 

Mr. William H. Sissen, and Mr. Wesley Sissen, for the 
plaintiff in error. 

Mr. R. W. Smith, for the defendant in error. 

Per Curiam: Carbine, holding a mortgage on two certain 
lots of land to secure the payment of a promissory note made 
on October 27, 1868, for $323, payable in one year from 
date, with ten per cent interest, and, having advertised the 
lots for sale under a power of sale contained in the mort- 
gage, Fox, the owner of the equity of redemption, filed his 
bill in chancery, setting up that the note had been fully paid 
and satisfied, and praying for an injunction against the sale 
of the property or foreclosure of the mortgage, and that the 
lots be declared free from the lien of the mortgage. The cir- 
cuit court decreed the relief sought. On appeal to the Ap- 
pellate Court for the First District, the decree was affirmed, 
and the case is brought here on error to the Appellate Court. 



1881.] Hunt v. City of Chicago. 147 



Syllabus. Brief for the Appellant. 



The writ of error must be dismissed for want of jurisdiction, 
the amount in controversy being less than $1000. It is urged 
that the writ maybe maintained on the ground of there being 
a freehold involved. As we have held that in a suit for the 
foreclosure of a mortgage on real property a freehold is not 
involved, it must, for the same reason, be held that a freehold 
is not involved in the present proceeding. 

Writ of error dismissed. 



Eliza O. Hunt 

v. 

The City of Chicago. 

Filed at Ottawa September £5, 1880 — Rehearing denied March Term, 1881. 

Dedication — of street, by plat. Where a party in subdividing his lots ad- 
joining a prior subdivision by another, of the remaining part of the block, upon 
the plat, of which prior subdivision is indicated a street next to such party's 
lots, having the appearance of being taken off the ground first platted, makes 
also a plat showing lots which by their dimensions embrace all of his ground, 
and a street the same as in the first subdivision, he will not be held to have 
dedicated any part of his land for any part of such street. Such person 
■will have the right to presume that the intervening street was taken 
out of that part of the block first subdivided and platted, and that no part of 
it encroached upon his lots. 

Appeal from the Appellate Court for the First District; — 
heard in that court on appeal from the Circuit Court of Cook 
county ; the Hon. Erastus S. Williams, Judge, presiding. 

Mr. William H. Holden for the appellant: 

The dedication of land to public uses is purely a question 
of intention. Godfrey v. City, 12 111. 30; Proctor v. Lewis- 
ton, 25 id. 153; Harding v. Town, 61 id. 192. 



148 Hunt v. City of Chicago. [March 

Brief for the Appellee. 

The law concerning plats that was in force at this time 
(Rev. Stat. 1845, p. 115, §§ 17, 18, etc.,) required the plat 
to particularly describe the streets and lots, giving their di- 
mensions, etc., and required the lots to be numbered and that 
their precise length and width should be stated on the plat, 
together with any streets which border on the same. 

Applying the law as it existed at the time, to the plat in 
question, it seems beyond controversy that, as the dimensions 
given for the lots included the apparent half streets border- 
ing on them, and as dotted lines embraced those apparent 
parts of half streets, Mr. Rockwell did not dedicate the 
spaces included within the dotted lines and measurements of 
his lots, as streets. 

Dotted lines enclosing land on plats indicate an intention 
not to dedicate the part included in them. Town, etc. v. 
Templeton, 71 111. 68. 

Where a city claims the fee to a street it must appear that 
a plat has been regularly made and recorded. Manly v. 
Gibson, 13 111. 308. 

Mrs. Hunt,by showing in her plat a street on the east of 
her lots, the same as appears on the west side of the Freeman 
lots in his plat, does not dedicate any of her land, as the 
statute requires a plat to show all streets bordering on the 
lots of the subdivision. 

Where a dedication is relied on, the acts of both the donor 
and the public authorities should be unequivocal and satis- 
factory of the design to dedicate, on the one part, and to 
accept on the other. Grube v. Nichols, 36 111. 96. 

Mr. Francis Adams, for the appellee, presented the facts 
and testimony at some length, and insisted that, from the 
facts so presented, there was a dedication on the part of the 
appellant. 



1881.] 



Hunt v. City of Chicago. 



149 



Opinion of the Court. 



Mr. Chief Justice Dickey delivered the opinion of the 
Court: 

Block 10, in Rockwell's addition to Chicago, before its 
subdivision into lots, was 660 feet long from east to west, 
and 431 feet wide from north to south. 

This block was first subdivided into 17 lots, by a plat 
which was not filed for record until July 18, 1854. 

That plat was as follows: 

Plat Showing Lots 11 to 17, inclusive, of Block 10, Bock- 
well's Addition to Chicago. Filed for record July 18, 1854, 
Book 85, p. 40. 









10.00 






© 




17 




- 


I— 1 




10.00 




c? 


0.91 


1.818 


1.818 




5.4G 


M 








r-Z 


55 


1 


11 


12 


13 


£2 




M 








i 


S3 


bo 


Or 




e* 






£0 


S3 




S3 










S 




0.91 


1.818 


1.818 


1-1 


SF8T 


& 



60.06: (119.98) : (119.98) 



(360.36) 



The figures upon the plat evidently relate to the entire size 
of the block, embracing 33 feet on the east and 33 feet on 
the south of what was intended to be made into lots, which 
was indicated upon the plat as dedicated or proposed to be 
dedicated, by a dotted line for half a street on the east and 
half a street on the south. It will be observed that at the 
south-east corner of the block, is a stone, which is a monu- 
ment from which the plat could be traced. This left lot 17, 



150 Hunt v. City of Chicago. [March 

Opinion of the Court. 

627 feet long from east to west and one chain or 66 feet from 
north to south. While lots 14, 15, and 16 are marked upon 
their eastern front as 1.843 (chains), yet it is evident, on 
inspection of the plat — and the scale — that the 1.843 at the 
east end of lot 14, represents the distance to the center of the 
street south of the corner of the lot (14), and that that lot 
was left 88f feet front, while lots 15 and 16 each had a front 
of 121-f feet, and these lots 14, 15 and 16, although marked by 
the figures on the plat as 5.46 chains long from east to west, 
were evidently but 327 feet long from east to west, represent- 
ing the 5 chains and 46 links, less half a chain, or 33 feet, 
which was proposed to be cut off the east end of these lots, 
to constitute a part of what is now Leavitt street, and was 
formerly called Cross street, so that the ground embraced in 
the lots 11 to 17 inclusive, was 627 feet from east to west, 
and 398 feet from north to south; leaving one half of Cross 
street to the east and one-half of Jackson street to the south. 

Of this ground, lots 11, 12 and 13, were 332 feet from 
north to south, and 300 feet from east to west. Their dis- 
tance from east to west is marked upon the plat in chains at 
91, 1.818, 1.818, which makes 300 feet. These three lots 
were subsequently bought by Mrs. Hunt, the appellant. 

Subsequently, Freeman and others became proprietors of 
lots 14, 15, 16 and 17. These lots, as shown upon the plat, 
consisted of lot 17, which was 66 feet from north to south 
and 627 feet from east to west; and lots 15 and 16 were each 
327 feet from east to west, and 121f from north to south ; 
and lot 14, which was 327 feet from east to west, and 88f 
feet from north to south. 



1881.] 



Hunt v. City of Chicago. 



151 



Opinion of the Court. 



Being thus the owners of this piece of land, which, on its 
longest line from east to west, was 627 feet, they subdivided 
it into lots, as shown by the following plat: 

Freeman's and others Subdivision in [Rockwell's Addition to 
Chicago, Block 10, Lots 14, 15, 16 and 17. Filed for rec- 
ord July 5, 1854. Becorded in Book 85, p. 25. 



30 



22 


38 


125 


22 


39 




22 


40 


125 



37 125 22 



35 36 



22 



35 125 



22 





to 

tO 


141) 


23 




tO 
lO 




22 




to 




21 


n 




20 




19 




18. 




17 




16 




15 


& 




14 


% 


140 


13 



17 


140 24 g^ 






25 8 






26 g] 




27 £ 


>> 


28 




3 


29 




< 


30 




31 






22 






33 8 


i— i 


140 34 §3 



22 


25 


25 


















25 


54 


54 






















12 


11 


10 


9 


8 


7 


6 


5 


4 


3 


2 


1 


g 






















8 


K-l 






















—4 


22 


25 


25 


















25 



Jackson St. 

Upon the inspection of this plat it will be seen that in 
making it, these proprietors have embraced in it 33 feet 
more ground from east to west than they owned, unless they 
owned the 33 feet on the east — shown on the first plat as part 
of a street. Beginning at the north-west corner, they by 
their plat evidently dedicate, as part of a proposed street, 
or lay off for a lot, a piece of ground 30 feet from east to 
west and 66 feet from north to south. The dotted line would 
indicate that it was intended to be, then or thereafter, appro- 
priated as half a street. Traveling east on the north line, 
we have a lot % 125 feet, an alley 23 feet, a lot 125 feet, a 
street 60 feet, a lot 140 feet,- and alley 17 feet, and then a lot 
140 feet, which, being added together, makes 660 feet from 
the north-west corner of their lot 17 to the north-east cor- 
ner of their lot 17, whereas their lot 17, was in fact, by the 
original plat, but 627 feet long. 



152 



Hunt v. City of Chicago. 



[March 



Opinion of the Court. 



Three hundred feet from the north-west corner of their 
plat, strikes the line of what, as shown upon the plat, is a 
street 60 feet wide, running north and south, and marked 
Elizabeth street, and this plat was duly acknowledged and 
placed upon record July 6th, 1854. Although recorded 
before the plat first above mentioned, it evidently was made 
after, for this shows Cross street at the east end of the block, 
as indicated upon the subdivision of Rockwell's addition. 

After these plats were placed upon record, Mrs. Hunt 
being the proprietor of the residue of the block not platted 
by Freeman's subdivision, consisting of the original lots 11, 
12 and 13, made a plat, by which she subdivided these three 
original lots into 27 sub-lots, an alley, and a half street. 
The following is a copy of her plat : 

Subdivision of Lots 11, 12 and 13, in Block 10 of Rockwell's 
Addition to Chicago. Filed for record Oct. 9th, 1855, Book 
98, p. 5. 

60 



30 


MS 

CO 


125 


2 


20 
< 

an 


125 £ 




& 




3 


4 £ 




3 




6 


A l o 




8 




7 


9 <M 




: io 


9 : 




ii 


12 • 


•4-3 


& 




14 


13 £ 


CO 


£ 




15 


10 ® 




M 




<M 




20 

27 

to 

o 

25 


25 
26 

25 


25 

25 

25 


24 


23 


25 
22 

25 


21 


20 


19 


18 


25 

17 

§ 

25 



s 



Jackson St. 



1881.] Hunt v. City of Chicago. 153 

Opinion of the Court. 

This plat was made and recorded the 9th of October,1855. 
To it is attached the following certificate: 



" State of Illinois, County of Cook, 

City of Chicago 



.} 



"I hereby certify that I have surveyed lots 11, 12 and 13, 
in block 10, in Rockwell's addition to Chicago; also that I 
have subdivided the same into lots, alleys and half street, as 
represented on the above plat of the same. I further certify 
said plat to be a correct representation of said survey and 
subdivision. Samuel S. Greeley, City Surveyor." 

October 8, 1855." 

And a certificate of Mrs. Hunt, by her attorney, was 
added, declaring that she owned lots 11, 12 and 13 in block 
10, and that she has caused the same to be subdivided as rep- 
resented on the plat; and a certificate of a justice of the 
peace that the plat was duly acknowledged and that the sub- 
division was the same as represented thereon. 

It is claimed by appellee, that by the acknowledgment and 
recording of this plat, which was recorded October 9th, 
1855, Mrs. Hunt dedicated from the east part of her land, 
one-half of what was designated as Elizabeth street on the 
map of Freeman's subdivision. This she denies, and the 
controversy is as to whether that dedication was made. 

It seems exceedingly clear that the making and recording 
of that map is not evidence of a dedication, by her, of any 
land on the eastern side of her lots as part of a street. She 
knew that she owned the three lots in the southwest corner 
of this block 10, which three lots embraced a piece of land 
300 feet from east to west, and a little over 330 feet from 
north to south, excluding 33 feet on the south for half of 
Jackson street. She found upon the records the Rockwell 
plat and the Freeman plat,- each purporting to be a plat of 
the whole of this block 10, so far as its north boundary is 
concerned. On Rockwell's plat it was laid down at ten 
chains or 660 feet. On Freeman's plat it was laid down 
as 660 feet. The fair inference to be drawn from 



154 Hunt v. City of Chicago. [March 

Opinion of the Court. 

that fact was, that the north-east corner of Freeman's plat 
was intended to be identical with the north-east corner of 
Rockwell's plat; and the north-west corner of Freeman's 
plat was intended to be identical with that of Rockwell's 
plat. If so, then Elizabeth street was, as shown on Free- 
man's plat, all taken out of that part of block 10 belonging 
to Freeman and others, and no part of it encroached upon 
lots 11, 12 and 13, which belonged to Mrs. Hunt. It was 
true that, on Rockwell's plat, which was first made, there 
was 33 feet dotted off on the east side as a part of Cross 
street; but it was also true that at the time Freeman recorded 
his map Rockwell's map had not been recorded, and hence it 
might readily have been inferred (if noticed at all) that the 
dedication thereby to the public of 33 feet for part of Cross 
street had not become effective, and it might well be inferred 
that Freeman, having acquired the land before the plat was 
recorded, had chosen not to make the dedication indicated as 
proposed on Rockwell's plat. At all events, any reasonable 
person looking at the map, without any explanation or infor- 
mation as to the intention of Freeman, finding his north line 
to be exactly 660 feet and to purport to be the north line of 
block 10, would necessarily assume that it embraced the en- 
tire north line of the block as it was originally, before Rock- 
well made his map. Freeman's map left, in block 10, and 
west of Elizabeth street, a space unplatted, which, from east 
to west, was just the width of Mrs. Hunt's ground, and from 
north to south was just the length of Mrs. Hunt's land. 
The fair inference was that this space represented her land. 
Whether it was Freeman's intention to make his map such 
as to make a dedication of 60 feet wide for the whole length 
of Elizabeth street, from his own land, is not material. The 
question is, what was the intention of Mrs. Hunt when she 
made her map. Looking at her map, we find that there is 
set off for a half street, from the west part of her land, 30 
feet, by dotted lines, and the words "half street" are written 
upon the plat. Then the certificate of the surveyor attached 



1881.] Hunt v. City of Chicago. 155 

Opinion of the Court. 

to her plat says that he subdivided lots 11, 12 and 13 of this 
block " into lots, alleys and half street," " as represented on 
the plat of the same." He says nothing about setting off 
any part of the ground contained in these three lots as a part 
of Elizabeth street, and there is nothing on the face of the 
plat to indicate that he did so. On the contrary, his half 
street is marked as to be taken from the west side of the 
ground, and his two alleys are laid down, one running east 
to west, 12 feet wide, and one running from the north to the 
south, half-way through the ground, 20 feet wide ; and all 
the rest of the ground, on the plat, is taken up by lots, and 
the size of the lots fronting on Jackson street are given — ten 
of them at 25 feet, one at 20 feet, and the half street at 30 
feet, making exactly 300 feet, which was the entire width of 
her land. If the half street be taken as a part of her ground, 
it is evident that no part of her ground could have extended 
into Elizabeth street. It is true Elizabeth street appears at 
the east of her plat, but not as a part of it, — and this because 
the statute required the map to show adjoining streets. 

Whatever may have been the intention of Freeman in fact 
in making his plat, it seems exceedingly clear that Mrs. 
Hunt in making her plat had no intention of setting off any 
part of her ground, from the east, as a part of Elizabeth 
street. It requires all of her land to fill the rest of the plat, 
and the description in the certificate of the surveyor is such 
as to require all of her ground to meet the declaration that 
the ground embraced in original lots 11, 12 and 13 is divided 
into "lots, alleys, and a half street." 

The ingenious argument in behalf of appellee suggests 
that Mrs. Hunt, in studying Freeman's plat, should have be- 
gun at the north-east corner, and should have assumed that 
that was set back 33 feet from the north-east corner of the 
original plat, as made by Rockwell (and this in the face of 
the fact that the north line of the block on both of the plats 
was shown as the same in length), and then, measuring west- 
ward, she would have found and reached, at 327 feet, a point 



156 Wenner v. Thornton et at [March 

Syllabus. 

north of the east line of her land at the center of Elizabeth 
street; and therefore, he insists that Freeman's map indi- 
cated to her that he intended to dedicate but half of it south 
of that point. It would seem that had he intended to dedi- 
cate but half of the street south of that point he would have 
run a dotted line through the centre of the street, in so far 
as it was not taken out of lot 17, but no such line appears 
upon his map. The argument used is that the land embraced 
in Elizabeth street did not belong to him. If you assume 
that the north-east corner of his plat was intended to be 33 
feet west of the corner of the block, as placed by Rockwell's 
subdivision, that is true; but his plat does not clearly so in- 
dicate. Nor is any reason assigned why, in her exami- 
nation of that plat, she should have begun at the north-east 
corner rather than at the north-west corner. 

The other proofs in this record fail to show that Mrs. Hunt 
ever intended to make the dedication in question, or that she 
did any act which can properly be regarded as such a dedica- 
tion. 

The judgment of the Appellate Court in this case must be 
reversed, and the cause remanded, with directions to that 
court to reverse the decree of the circuit court and remand 
the cause to the circuit court to enter a decree granting the 
relief sought in the bill. 

Judgment reversed. 



William Wenner 

v. 

David H. Thornton et al. 

Filed at Ottawa November 17, 1SS0 — Rehearing denied March Term, 1881. 

1. Statutes — of their passage, under the constitution of 1848. A bill, origi- 
nating in the Senate in 1865, after its passage there, was read in the House a 
first and second time, and referred to a committee, who reported the same 



1881.] Wenner v. Thornton et at 157 

Syllabus. 

back with a recommendation that the same do not pass, and, on motion, the 
enacting clause was stricken out. Afterwards, the bill was passed by the 
House, and a message to that effect was sent to the Senate, and the act was 
duly signed and approved by the Governor. There was no record of the House 
having rescinded its action striking out the enacting clause: Held, that the 
subsequent passage of the bill, and the message to the Senate, amounted to 
a rescinding of the former vote striking out the enacting clause, and that the 
bill became a law. 

2. Administrator with will annexed — right to have will carried into exe- 
cution. Where a testator, by will, directed that as soon as practicable, after 
his death, his real estate should be sold on credit, and that the money derived 
therefrom be added to his personal estate and equally divided among his 
brothers and sisters, etc., but appointed no executor: Held, that the admin- 
istrator with the will annexed was authorized to apply to a court having 
equitable jurisdiction, to have a trustee appointed to make sale of the lands, 
though perhaps not bound to do so, and the court had jurisdiction to make 
the appointment on his application. 

3. Jurisdiction — can not be denied for mere error. Where the court has 
jurisdiction of the subject matter of a suit, although it may appear on the 
face of the proceeding that the plaintiff is not entitled to bring the suit, this 
will not make a want of jurisdiction, and render the judgment or decree a 
nullity. It will only show an error in the exercise of jurisdiction, which can 
not be urged in a collateral proceeding. 

4. Same — presumption in favor of. Every presumption is indulged in to 
support the decree of a court of general jurisdiction. Where the judgment 
or decree of such a court is relied on collaterally, jurisdiction must be pre- 
sumed, although it fails to appear in the record. 

5. Same — presumption from recital in decree. Where a decree in a suit 
against the unknown heirs and devisees of a deceased person, recites that it 
appeared to the court " that the process of summons was duly issued out of 
the court against the said defendants, the unknown heirs and unknown devi- 
sees of H. T., deceased, on," etc., this recital implies that the required affida- 
vit to warrant the issue of such a summons had been filed. 

6. Practice — affidavit for publication under Rev. Stat. 1845. The Revised 
Statutes of 1845, relating to chancery practice, contemplates there shall be 
two affidavits filed, one, under section 41, to authorize a proceeding against 
persons by the name and description of unknown persons, and another under 
section 8, to justify publication of the notice to the defendants in the suit. 

7. Judicial sale — trustee selling, acting as agent for the purchaser. Where 
the purchaser, at a sale under a decree of court, on the morning of the sale 
sent his bid with the person appointed to make the sale, which bid was a defi- 
nite and fixed one, and was named and cried by the seller, and the land was 
struck off on such bid, it was held that there was no such agency on the part 



158 Wenner v. Thornton et at. [March 



Statement of the case. 



of the seller as to afford any ground for setting aside the sale, it appearing 
that the party selling acted in good faith to procure the best price he could. 

8. Same — purchase by surety of party selling. The fact that a purchaser at 
a sale of land by a trustee, under appointment by a court — the trustee being 
also administrator, is a surety on his bond as administrator, is no ground 
for impeaching the sale. 

9. Same — mistake in report. A mistake in the report of a sale under a 
decree of court, of $100 more than the price of the land actually sold for, is 
not of such importance as to affect the sale after its confirmation. 

Appeal from the Circuit Court of LaSalle county. 

This cause was before this court at the September term, 
1878, when the decree which had been rendered by the cir- 
cuit court of LaSalle county was reversed as to the defendant 
in error, William Wenner, and the cause remanded. In all 
other respects the decree of the circuit court was affirmed. 
The case is that of Thornton et al. v. Houtze et al. reported in 
91 111. 200, where will be found a full statement of the ques- 
tions then presented by the pleadings. The pleadings and 
record being voluminous, and all the questions in the case 
having been, by the former decision of this court, settled, ex- 
cept those which affect the appellant here, William Wenner, 
it is unnecessary to state here any more of the case than re- 
lates to him. 

The bill in the case was one in chancery, filed by David H. 
Thornton and others, against William G. Houtze, administrator 
with the will annexed, and Sarah W. Thornton, widow of 
Hiram Thornton, deceased, and William Wenner and others, 
alleging the complainants to be heirs and devisees of Hiram 
Thornton, deceased, who died testate January 31, 1866, 
leaving a widow, Sarah W. Thornton, but no child or chil- 
dren, nor descendants of a child or children, nor parents or 
parent; that his will was probated, and William G. Houtze 
appointed administrator with the will annexed. A copy of 
the will is made part of the bill as an exhibit. 

Among other things, the bill alleged that at the March 
term, 1866, of the county court of LaSalle county, said Wil- 



1881.] Wenner v. Thornton et al. 159 

Statement of the case. 

liara G. Houtze exhibited his bill of complaint against the 
unknown heirs and unknown devisees of Hiram Thornton, 
deceased, praying for power to sell certain real estate therein 
described, according to the directions in the will of said 
Hiram Thornton; that said court on the 9th day of June, 
1866, pursuant to the prayer of the bill, decreed that the said 
Houtze be appointed trustee to sell and convey the real estate 
in the bill described; that he afterwards sold and conveyed 
said real estate to William Wenner; and the bill charged that 
"Wenner was a brother-in-law of Houtze, that he was simply 
a nominal purchaser, — that the purchase was made for the 
benefit of Houtze, and for a grossly inadequate price. The 
prayer of the bill is, that the sale of the land to William 
Wenner may be set aside, etc. Wenner answered, denying 
the charges respecting him. The cause was heard the first 
time in the circuit court on bill, answers and proofs, and the 
court found that the sale by Houtze to Wenner was in good 
faith, and decreed that the bill be dismissed as to Wenner. 

The complainants brought the case to this court by writ 
of error, and Wenner filed a plea which was regarded as sub- 
stantially a plea of release of errors. Three replications were 
filed to the plea, upon which issues of fact were formed, — the 
first issue of fact being whether Wenner had paid to Houtze 
$4585, the purchase money for the land sold to him by 
Houtze. These issues of fact were referred by this court to 
the circuit court of LaSalle county for trial. In that court 
the parties waived a trial by jury, of the issues, and submitted 
the issues to the court for trial. The court found the first 
issue of fact in favor of Wenner, and the other two in favor 
of the plaintiffs in error; those other two issues being 
whether Houtze, since the rendition of the decree, had paid 
to the plaintiffs in error the sum of $8, 41 0.26 or any sum in 
satisfaction of the decree — and whether the plaintiffs in error, 
since the decree, had accepted and received from Houtze the 
said sum of $4585. The findings of the circuit court upon 
these issues were, by that court, certified back to this court, 



160 Wenner v. Thornton et al. [March 

Statement of the case. 

with the evidence ; and the question was then presented to 
this court whether the evidence sustained the findings. We 
held that it did ; and the result being that the plea of Wenner 
was not sustained — the issues upon two replications being 
found against him — the decree was reversed as to him and 
the cause remanded. 

Upon the filing of the remanding order in the circuit court, 
the complainants amended their bill by alleging that the 
county court of LaSalle county did not have jurisdiction of 
the subject matter of the suit of Houtze for the appointment 
of a trustee; that William Wenner was incapacitated from 
becoming a purchaser at the sale by reason of his being the 
surety on the official bond of Houtze as administrator; and 
that Wenner was not present at the sale, but that Houtze 
acted as Wenner's agent in buying the land, and was there- 
fore both buyer and seller, and that for each of these reasons 
the sale should be set aside. Wenner answered in denial, 
except as to his being surety, and not being present at the 
sale. 

By order of the circuit court the two following questions 
were submitted to a jury for trial: 

1. Did William Wenner purchase the land in controversy 
for the benefit of William G. Houtze? 

2. Did William Wenner pay to William G. Houtze the 
whole of the purchase money for said land? 

The jury found each of these issues in favor of Wenner. 
Thereupon complainants entered a motion to set aside the 
verdict, which motion the court overruled. Yet the court 
found that the county court of LaSalle county, under whose 
decree the land was sold, did not have jurisdiction of the 
persons of the heirs and devisees of Hiram Thornton, de- 
ceased, who were complainants in the present suit; that 
Houtze, as agent for Wenner, bid for and purchased the land 
for Wenner, thereby acting in the capacity of both buyer and 
seller; and that the sale was irregularly conducted in the 
interest of Wenner in a manner not calculated to obtain the 



1881.] Wenner v. Thornton et al. 161 

Brief for the Appellant. 

best price for the land, and decreed in favor of the complain- 
ants, setting aside the sale. Wen-ner appealed. 

Mr. E. F. Bull, for the appellant : 

The presumptions of law are all in favor of the appel- 
lant. This court will not vacate the decree under which he 
purchased, nor set aside the deed made to him, for slight or 
trivial reasons. 

The act increasing the jurisdiction of the county court of 
LaSalle county, in 1865, was passed in the constitutional 
mode, and became a valid law. 

As to the jurisdiction of the court of the persons of the 
heirs and devisees of Hiram Thornton, the county court being 
made a court of general jurisdiction, every presumption will 
be indulged to support its decree. Nells v. Mason et al. 4 
Scam. 84; Iglehart v. Pitcher, 17 111.308 ; Rich v. Hathaway, 
18 id. 549; Osgood v. Blackmore, 59 id. 264; Swearingen v. 
Gulich, 67 id. 210; Wallace v. Cox, 71 id. 549; Thornton v. 
Houtze, 91 id. 199; Freeman on Judgments, § 330. 

Section 8 of the Chancery Code of 1845 requires an affida- 
vit to be filed, while section 41 requires another and entirety 
different one in the case of unknown heirs and devisees. The 
presumption is that the requisite affidavit was filed, when the 
files are lost ; and even conceding that the record is entirely 
silent upon that subject, it will be presumed that the county 
court had evidence before it of all the jurisdictional facts to 
be established to authorize such court to assume jurisdiction 
of the case. Swearingen v. Gulich, 67 111. 212; Freeman on 
Judgments, § 132; Sharpe v. Brunnings, 35 Cal. 528; 
Mitchell v. Menley, 32 Texas, 460; Hahn v. Kelley, 34 Cal. 
391; Lawless heirs v. White, 27 Texas, 250; Coit v. Haven, 
30 Conn. 190; Morgan v. Burnett, 18 Ohio, 535; Wallace v. 
Cox, 71 111. 548. 

A bid on real estate at a judicial sale may be made without 
the bidder being present. Dickerman et al. v. Burgess et al. 
20 111.266. 

11—98 III. 



162 Wenner v. Thornton et al. [March 

Brief for the Appellees. 

Mr. Charles Blanchard, Mr. G. S. Eldridge, Mr. H. 
T. Gilbert, Mr. C. H. Brush, and Mr. L. B. Crooker, for 
the appellees: 

The county court of LaSalle county had no jurisdiction of 
the subject matter of the suit, for two reasons: 

1. The law conferring chancery jurisdiction, approved 
February 16, 1865, never constitutionally passed the legisla- 
ture. Laws 1867, p. 37; Constitution 1848, art. 3, § 20; 
Cush. Par. Law, § 2, 101; Bedardv. Hall, 44 IH. 91. 

2. A court of equity can not assume jurisdiction for the 
appointment of trustees, except on the application of a party 
beneficially interested in the execution of the trust. Dickey 
et al. v. Reedetal 78 111. 269; Hall v. Erwin, 2 Gilm. 176; 
Hill on Trustees (side page), 194; In re Pet. of Livingston, 
54 N. Y. 569 ; King v. Donnelly, 5 Paige, 46; Hawley v. Ross, 
7 id. 106; In re Bedford Charity, 2 Swanst. 578. 

The county court never acquired jurisdiction of the persons 
of the unknown heirs and devisees of Thornton. 

When a court of general jurisdiction acts upon the rights 
of persons residing without its territorial jurisdiction, by 
constructive service of process, the record must affirmatively 
show that all the requirements of the statute have been com- 
plied with, otherwise its judgment and decree will be a nul- 
lity. Galpin v. Page, 16 Wall. 350; Hay ward v. Collins, 60 
111. 330; Denning v. Corwin, 11 Wend. 648; Doulin v. Het- 
tinger, 57 111. 348; Fell v. Young, 63 id. 106. 

The sale was fraudulent because the administrator, in sell- 
ing the land, acted as the agent of the purchaser. Ex parte 
Bennett, 10 Ves. 383; DeCaters v. LeRay DeChaumont, 3 
Paige, 178; Hawley v. Cramer, 4 Conn. 735 ; North Baltimore 
Building Ass. v. Caldwell, 25 Md. 420; Chambers v. State, 3 
Humph. 241; McLeod v. McCall, 3 Jones (N. C.), 87; 2 Perry 
on Trusts, § 602; Dyer v. Shurtliff, 112 Mass. 165. 

The sale was fraudulent because Wenner was the surety on 
Houtze's official bond as administrator. Armstrong v. Hus- 






1881.] Wenner v. Thornton et al. 163 

Opinion of the Court. 

ton's heirs, 8 Ohio, 554; Buckler v. Lafferty's legatees, 2 Rob- 
inson, 294 ; 1 White & Tudor's Leading Cases in Equity, 73; 
Gardner v. Ogden, 22 N. Y. 327. 

Mr. Justice Sheldon delivered the opinion of the Court: 

It is strenuously insisted, on the part of appellees, that the 
sale of this land by Houtze to Wenner, under the decree of 
the county court of LaSalle county, was not one in good 
faith ; that Wenner did not pay the purchase money, and was 
but a merely nominal purchaser. 

Upon a careful examination of the testimony, while we 
find that it discloses suspicious circumstances, we can not say 
that it does not authorize the finding of the jury that Wenner 
purchased, in good faith, for himself, and paid the purchase 
money. This finding was in accordance with other repeated 
findings in the case in the same way, and we do not find that 
there is sufficient reason to disturb the verdict. It would be 
without profit to review the testimony in detail, and we con- 
tent ourselves with stating the conclusion. 

Objection is made by the appellees that the county court 
of LaSalle county did not have jurisdiction of the subject 
matter of the suit in which the decree of sale was rendered, 
for two reasons: first, that the law conferring chancery juris- 
diction upon the county court never constitutionally passed the 
legislature; and, second, that a court of equity cannot as- 
sume jurisdiction of a suit for the appointment of a trustee, 
except at the application of a party beneficially interested in 
the execution of the trust. 

The jurisdiction which the county court assumed to exer- 
cise was by virtue of "An act to extend the jurisdiction of 
the county court of LaSalle county," approved February 16, 
1865. (Laws of 1865, p. 37.) 

The bill originated in the Senate, being known as Senate Bill 
No. 38, which, after its passage by the Senate, was read in the 
House a first and second time and referred to the committee on 



164 Wenner v. Thornton et al. [March 

Opinion of the Court. 

the judiciary, who reported the bill back with a recommenda- 
tion that the same do not pass, and, on motion of the chairman 
of the judiciary committee, the enacting clause was stricken 
out. Afterwards the bill was passed by the House, which 
thereupon sent a message to the Senate to the effect that they 
had concurred in the passage of Senate Bill No. 38. The 
bill, after being there reported, was duly signed by the Presi- 
dent of the Senate and Speaker of the House, and approved 
by the Governor, and has gone upon the statute book of this 
State. As there is no record of the House having rescinded 
its action in striking out the enacting clause, it is assumed 
that the House passed the bill without any enacting clause ; 
and it is claimed that its action was in violation of the con- 
stitution and produced simply a nullity, the constitutional 
provision bearing upon the matter being that "the style of 
the laws of this State shall be: Be it enacted by the people 
of the State of Illinois, represented in the General Assem- 
bly.^ 

The proper enacting clause appears to the act, and without 
more, we regard the subsequent passage of the bill by the 
House, and the message to the Senate, as amounting to a 
rescinding of the former vote striking out the enacting clause. 

The other ground of claim of the want of jurisdiction in 
the county court of the subject matter, is that Houtze, the 
administrator with the will annexed, was not beneficially 
interested in the execution of the trust, and hence the court 
had no power at his suit to exercise the jurisdiction to appoint 
the trustee, and its decree was void. 

"We do not think that Houtze is to be regarded as a mere 
stranger in that proceeding. 

Hiram Thornton, by his will, directed that as soon as prac- 
ticable after his death, this real estate should be sold on one, 
two and three years' payments, in equal instalments, at six per 
cent interest, and the money derived therefrom be added to 
the personal estate and equally divided between his brothers 
and sisters, or their heirs. No executor having been appoint- 

\ 



/ 

1881.] Wenner v. Thornton et al. 165 

Opinion of the Court. 

ed by the will, Houtze was appointed by order of the probate 
court, administrator with the will annexed. It was his duty 
to execute the will. He could not pay to the persons entitled 
thereto, the legacies and bequests contained in the will — 
to-wit, the moneys arising from the sale of the land — until 
this land was sold. His proceeding to have a trustee appointed 
to make the sale, was but the carrying out of the will of the 
testator that the land should be sold, and though he might 
not have been required by his duty as administrator with the 
will annexed to take this step, yet he was not so disconnected 
in interest with the proceeding that the decree of the county 
court, on his application for the appointment of a trustee to 
make sale of the land, should be held as made without juris- 
diction of the subject matter, and a nullity. The coun- 
ty court, in entertaining the proceeding and making the 
decree, must have held that the administrator had such 
an interest, by virtue of his appointment, as authorized him to 
file the bill, and an innocent purchaser under the decree had 
the right to rely upon it as respects this matter, and it should 
be held a protection to him. 

Thus much has been said upon the assumption that an 
interest on the part of the plaintiff in the matter in litiga- 
tion, is essential to give jurisdiction of the subject matter of 
a suit. But we do not acquiesce in such assumption, regard- 
ing that although it may appear on the face of the proceed- 
ing that the plaintiff is not entitled to bring the suit, yet, 
that does not make a want of jurisdiction of the subject mat- 
ter, and render a judgment for the plaintiff a nullity, — but 
that it would only be erroneous — that there would be but 
error in the exercise of jurisdiction, and not alack of juris- 
diction of the subject matter of the suit. 

The next inquiry is, whether there was a want of jurisdic- 
tion in the county court of La Salle county, of the persons 
of the heirs and legatees of Hiram Thornton. 

The proceeding there, was against them as the unknown 
heirs and unknown legatees of Hiram Thornton, deceased. 



166 Wenner v. Thornton et ah [March 



Opinion of the Court. 



The ground of the claim of a want of jurisdiction of the 
persons, is the absence of an affidavit that the names of 
such persons are unknown. The provisions of the statute 
regarding such proceeding are as follows: 

"In all suits in chancery, and suits to obtain title to lands, 
in any of the courts of this State, if there be persons inter- 
ested in the same whose names are unknown, it shall be law- 
ful to make such persons parties to such suits or proceedings 
by the name and description of persons unknown, or 
unknown heirs or devisees of any deceased person, who may 
have been interested in the subject matter of the suit pre- 
vious to his or her death; but in all such cases an affidavit 
shall be filed by the party desiring to make any unknown 
person a party, stating that the names of such persons are 
unknown, and process shall be issued against all parties by 
the name and description given as aforesaid, and notices given 
by publication as is required in section eight of this chapter, 
shall be sufficient to authorize the court to hear and deter- 
mine the suit as though all parties had been sued by their 
proper names." Eev. Stat. 1845, p. 98, § 41. The section 
eight referred to is, "Whenever any complainant shall file in 
the office of the clerk of the court in which his suit is pend- 
ing an affidavit showing that any defendant resides or hath 
gone out of this State, or on due inquiry can not be found, or 
is concealed within this State, so that process can not be 
served upon him, the clerk shall cause publication to be 
made in some newspaper printed in his county, and if there 
be no newspaper published in his county, then in a news- 
paper published in this State, containing notice of the pen- 
dency of such suit, the names of the parties thereto, the 
title of the court, and the time and place of the return of 
summons in the case; such publication to be made for four 
successive weeks, the first of which shall be at least sixty 
days before the return day of such summons. " 

The publisher's certificate of publication in the case in the 
county court in due form appears in the record. In the 



1881.] Wenner v. Thornton et ah 167 



Opinion of the Court. 






order of the court, taking the bill pro confesso, it is recited: 
" It appearing to the court that the defendants were duly 
notified of the pendency of this suit, by publication of notice 
in the Ottawa Free Trader, a weekly newspaper of general 
circulation, printed and published in LaSalle county, more 
. than sixty days before the first day of the present term of 
this court," etc. 

In the final decree it is recited: "This day this cause 
came on to be heard upon the bill taken pro confesso, exhibits, 
and proofs taken in open court, and before the master in chan- 
cery, whose report is approved, and is as follows : i The com- 
plainant appeared before me by his solicitor, and made proof 
duly: 1st, etc., * * 5th, That the said Hiram Thornton is 
supposed to have left one brother, whose christian name is 
unknown, and who resides in the State of Oregon, if living, 
but that it is unknown whether the said brother is living or 
not, or whether there are any other heirs of the said Hiram 
Thornton living. But that if any such are living they are 
non-residents of this State.' 

"And- it appearing to the court that the process of summons 
was duly issued out of the court against the said defend- 
ants, the unknown heirs and unknown devisees of Hiram 
Thornton, deceased, on the 8th day of February, A. D. 1866, 
and was duly returned by the sheriff in conformity with law 
that the said defendants could not be found in his said county, 
and it appearing further that the said complainant filed in 
the office of the clerk of this court an affidavit showing that 
said defendants reside out of this State, and that publication 
was made in the Ottawa Free Trader, a weekly newspaper 
printed and published in the city of Ottawa, in said county, 
containing notice of the pendency of this suit, the names of 
the parties thereto, the title of the court, and the time and 
place of the return of the said summons in the case, and that 
such publication was made for more than four successive 
weeks, the first of which was more than sixty days before the 
return day of the said summons," etc. 



168 Wenner v. Thornton et al. [March 



Ooinion of the Court. 



In the case in the county court, the files have disappeared, 
so that if the required affidavit that the names of the persons 
were unknown had been duly filed, it could not now be pro- 
duced. 

By the act of the General Assembly, passed in 1865, ex- 
tending the jurisdiction of the LaSalle county court, that 
court was made a court of general jurisdiction, and every 
presumption is indulged in to support the decree of such 
courts. Where the record of a judgment or decree is relied 
on collaterally, jurisdiction must be presumed in favor of a 
court of general jurisdiction, although it fails to appear in 
the record. Swearingen v. GulicJc et al. 67 111. 210; Freeman 
on Judgments, § 330. 

And, even conceding the claim of appellees, that although 
this be the general rule, there is an exception where a court 
of general jurisdiction is exercising a special statutory power — 
such as is claimed to have been here — in which case the record 
must affirmatively show jurisdiction, we are inclined to hold 
that the record here contains a sufficient recital of jurisdiction. 
There is no question in the matter, except as to whether an 
affidavit was filed that the names of the heirs and devisees of 
Hiram Thornton were unknown. Had that been done, and 
they properly proceeded against by the description of un- 
known heirs and unknown devisees, instead of by their 
proper names, then there was jurisdiction of their persons; 
there being no question made, as none can be, that the publi- 
cation of notice was sufficient if the heirs and devisees were 
rightly proceeded against as unknown heirs and devisees. It 
is a recital of the decree, that it appeared to the court " that 
the process of summons was duly issued out of the court 
against the said defendants, the unknown heirs and un- 
known devisees of Hiram Thornton, deceased, on the 8th day 
of February, 'A. D. 1866." 

Now, by the statute, to authorize the issuing of summons 
against parties by the name and description of unknown 
heirs and unknown devisees, there must have been an affi- 



1881.] Wenner v. Thornton et al. 169 

Opinion of the Court. 

davit filed by the party desiring to make such unknown per- 
sons parties, stating that the names of such persons were 
unknown. Summons, then, could not have been duly issued 
against the unknown heirs and unknown devisees of Hiram 
Thornton, unless there had been such an affidavit filed. And 
when the decree recites that it appeared to the court "that 
the process of summons was duly issued out of the court 
against the said defendants, the unknown heirs and unknown 
devisees of Hiram Thornton, deceased," the recital implies 
that the required affidavit to warrant the issue of such a 
summons had been filed. Hence we find that the recital 
shows there had been such an affidavit filed. 

There is evidently no force in the suggestion of appellees' 
counsel, that the additional recital in the decree, "and it 
appearing further that the said complainant filed in the office 
of the clerk of this court an affidavit showing that said de- 
fendants reside out of this State, and that publication was 
made in the Ottawa Free Trader" etc., shows that such affi- 
davit of non-residence was the affidavit, and all the affi- 
davit which was filed in the case. The statute contemplates 
there shall be two affidavits filed, one under section 41 to 
authorize the proceeding against persons by the name and 
description of unknown persons, and another under section 
eight to justify publication of notice to defendants in a suit. 
The affidavit mentioned in the recital is that one required to 
be made under section eight, and affords no implication that 
that was all the affidavit which was made in the case, or that a 
proper affidavit as required was not made under section 41. 

Respecting the point, that Houtze acted as the agent of 
"Wenner in purchasing, as well as the agent of the court in 
selling, the land, all there is of that is, that it appears that it 
being impossible for Wenner to attend the sale, he sent by 
Houtze on the morning of the sale a bid for the land of the 
sum of $4596, and Houtze struck off the land to Wenner 
for that sum. We think that where there was no more of an 
agency exercised than appears here, it is not ground for set- 



170 Wenner v. Thornton et al. [March 

Opinion of the Court. 

ting aside a sale. The bid sent appears to have been a definite 
and fixed one, without any discretion in Houtze to vary it. 
Wenner simply gave to the trustee the bid that he was will- 
ing to make. This court gave sanction to such a transaction 
in Diokerman et al. v. Burgess et al. 20 111. 266, a case of a 
sheriff's sale under execution upon a bid sent to him by letter. 
The court say: "Nor do we mean to be understood as 
objecting to receiving a bid by letter — but the officer must 
cry the bid, and if there be no advance on it, he would be 
justified in selling at the bid. The debtor has a right to 
insist upon all the forms." Houtze here did cry the bid of 
Wenner, and there was no advance on it. 

It is susrcrested there is a distinction between that case 
and the present, which should cause a difference of deci- 
sion, the former being a case of sheriff's sale upon execution. 
We perceive no room for any distinction, in principle, between 
the two cases. 

We find no sufficient ground for the objection that the sale 
was so conducted by Houtze as to advance Wenner's interest 
and enable him to obtain the property at an inadequate 
price. It appears from the evidence, that Houtze had once 
previously offered the land for sale under the decree, and the 
most that he could obtain therefor was a bid of $4075. 
Wenner made no bid at that sale. The sale was reported to 
the county court, and on the petition of Houtze, the trustee, 
the court refused to confirm the sale, the reason being that the 
trustee thought the land would bring more if a re-sale was 
ordered. Upon the re-sale being ordered by the county court, 
Houtze re-advertised the premises in the public newspapers 
and posted up a large number of hand bills throughout 
the county, and made otherwise extraordinary efforts to 
induce the attendance of bidders, and procure the best price for 
the land at the second sale; and the result was that he 
obtained nearly $600 more at the second sale than was bid at 
the first. The sale was opened according to the notice, at 10 
o'clock in the forenoon, at the county court house in Ottawa, 



1881.] Wenner v. Thornton et al. 171 

Opinion of the Court. 

and for the purpose of giving all parties that might have a 
desire to bid upon the land a chance to be present and do so, 
the sale was kept open until 5 o'clock in the afternoon of that 
day. It appears that there had been three or four bids made, 
and the trustee, in the presence and hearing of the persons who 
had bid at the sale, announced that he had a bid that had been 
handed him, and he made the bid Wenner had given him, 
which was some §35 in excess of any bid which he then had. 
This was at the hour of 4 o'clock. The sale was kept open 
till 5 o'clock, and there being no advance on We liner's bid, 
the land was struck off to Wenner at his bid. There were 165 
acres of the land, a 160-acre tract, and a 5-acre tract. There is 
some conflict in the evidence in regard to the value of the 
land, but we find no just ground of complaint on account of 
inadequacy of price. It is said that Houtze should have 
announced Wenner's bid at the commencement of the sale. 
That might have been the better course, but not doing so 
should not be ground for setting aside the sale. 

It is urged that the sale was fraudulent in law because 
Wenner was the surety on Houtze's official bond as adminis- 
trator. 

We have been referred to no authority in support of such 
a position, nor are we aware of any, or any principle which 
would condemn a purchase under such circumstances at an 
administrator's sale. 

But this was not an administrator's sale, though made by 
Houtze, who was administrator with the will annexed. It 
was a trustee's sale, made by Houtze, a trustee, by virtue of a 
decree of court appointing him trustee to make the sale. 

Another reason urged why the sale should not be sustained 
is, that by Houtze's report of the sale, made to the county 
court, it appears that he struck off and sold to Wenner the 
160-acre tract at four thousand five hundred and eighty-five 
dollars, and the county court approved the report and sale; 
while Wenner and Houtze both testify that the bid actually 
made upon the 160 acres was four thousand four hundred and 



172 The People ex rel. v. Peacock. [March 

Syllabus. 

eighty-five dollars, and that amount is all Wenner has ever 
paid for the land. 

It would seem from this that there was a mistake made in 
the report, of the amount of the sale to the county court, of 
one hundred dollars. 

We can not regard this as a circumstance which should 
affect the sale. 

The decree is reversed, and the cause remanded for further 
proceedings in conformity to this opinion. 

Decree reversed. 



The People ex rel William T. Johnson, Collector, etc. 

v. 
Joseph Peacock. 

Filed at Springfield March 21, 1S81. 

1. Taxes — one per cent per month penally is not retrospective. That part of 
sec. 177, of the Revenue act, which provides that "unpaid taxes shall bear 
interest, after the first day of May, at the rate of one per cent per month 
until paid," etc. not having gone into effect until the first day of July, 1879, 
can not be held to apply to taxes of 1878, and prior years. 

2. Independent of the rnle which forbids the giving of statutes a retro- 
spective operation unless an intention to that effect is clearly manifest, the 
clause of the Revenue act giving one per cent per month on unpaid taxes 
after May the first, being highly penal, can not be held to apply to back 
taxes, which necessarily consist of accumulated interest upon interest, not 
distinguishable from the taxes proper. 

3. Same — the one per cent per month for delay in payment is not interest, hut 
only a penalty. That part of sec. 177, of the Revenue law, which requires 
the payment of one per cent a month on unpaid taxes, after May the first, is 
not interest, in the legal sense of that term, but is a penalty; and hence it is 
not in conflict with sec. 22, art. 4, of the constitution, which forbids the pass- 
ing of any local or special law regulating the rate of interest on money. 

4. Statutes — retrospective operation not favored. Statutes, except those 
relating to remedies exclusively, will not be given a retrospective operation, 
unless the intention to make them so is manifest. 



1881.] The People ex rel. v. Peacock. 173 

Brief for the Appellant. 

5. Same — penal one, to be strictly construed. Penal statutes are to be strictly 
construed, and are never to be extended by mere implication to either persons 
or things not expressly brought within their terms. 

6. Same — construed so as not to be in conflict with organic law. Courts will 
not so construe a statute as to render it unconstitutional, if any other reason- 
able construction can be placed upon it which will render it effectual and 
legal. 

Appeal from the County Court of Cook county ; the Hon. 
Mason B. Loomis, Judge, presiding. 

Mr. Consider H. Willett, for the appellant : 

Sec. 177, of the Revenue act, as amended in 1879, was not 
in force to apply to the taxes of 1879. People ex rel. v. 
Thatcher, 95 111. 109. But must govern after it took effect. 

Back taxes, like current taxes, become delinquent each 
year by force of sec. 177, if such back taxes remain due and 
unpaid on the 10th day of March. We admit the rule to be, 
that no statute will be so construed as to give it a retrospect- 
ive operation, unless intention manifestly appears. Breesev. 
Schuyler, 4 Gilm. 221; Conway v. Cable, 37 111. 82; In re 
Tidier, deceased, 79 id. 99; Price v. Mott, 52 Pa. St. 315; 
City of Oakland v. Whipple, 44 Cal. 303; State v. Atwood, 
11 Wis. 422. 

We do not ask for any but a prospective operation of the 
law. The object of the section is to compel prompt payment 
of taxes, and has the like force upon back or current taxes. 
The language used is unequivocal, and demands a construc- 
tion which makes this "one per cent per month" apply to all 
unpaid taxes. 

Is not the statute remedial and governed by the construc- 
tion put upon remedial statutes? 

The legislature may change its revenue laws, imposing 
new conditions upon the collection of taxes already delin- 
quent. Negus v. Yancey, 22 la. 57; Sully v. Kuehl, 30 id. 
275 ; Litchfield v. Webster Co. 101 U. S. 773. 

That this one per cent per month is a penalty, and not 
interest, see Bouvier's Die, title "Interest"; 2 Black. Com. 



174 The People ex rel. v. Peacock. [March 

Brief for the Appellee. 

454; Madison Co. v. Bartlett, 1 Scam. 67; Phinney v. Baldwin, 
16 111. 108; Willis v. Legus, 45 id. 289; Popper v. Holmes, 
44 id. 360. 

Such penalties are legal. Bristol v. Chicago, 22 111. 587; 
Scammon v. Chicago, 44 id. 269; Cooley on Tax. 313. 

If this statute is to be construed as interest, then it follows 
that this one per cent is special legislation, and unconstitu- 
tional. 

Mr. Edward Robey, and Mr. George L. Thatcher, for 
the appellee: 

The authority for the addition is sec. 177, introduced into 
the Revenue chapter by amendment, July 1, 1879. 

Construing this section with the residue of the chapter, we 
see that the court did not err in refusing to add interest at 
one per cent a month, from May 1, 1880, to back taxes and 
forfeitures included in the warrant of 1879. The authority 
for adding those back taxes is sec. 129, supplemented by sec. 
229. Section 129 requires the addition of the "back tax, 
interest, penalty and printers' fees remaining due on such real 
property, with one year's interest at ten per cent on the 
amount of tax due." It is to be observed that all the inte- 
rest due on the tax at the time of this extension is to be 
included in the amount, besides this " one year's interest;" 
and the conclusion follows, that this "one year's interest" is 
for the year to come. This is "one year's interest," and 
the year must commence and end at some time. These words 
"one year's interest," were wholly unnecessary, except to 
express an idea, — as the express words and expressed intent 
can not be rejected, and as all the back taxes, and all the 
interest due at the time of the issue of the tax books are to 
be included, without reference to any judgment. People v. 
Smith, 94 111. 229. And "one year's interest" is to be added 
to that. People v. Gale, 93 111. 127. And as there is noway 
in which these taxes can be collected by compulsion until 
the lands are offered for sale in the next year, it appears that 



1881.] The People ex rel. v. Peacock. 175 

Opinion of the Court. 

this "one year's interest" is for this "one year's" forbear- 
ance of the money. 

Section 177 is evidently intended to be confined to the taxes 
of the current year. Under it, they become delinquent in 
March succeeding the issue of the warrant, and bear interest 
at one per cent a month " till forfeited ;" then the tax and 
this interest are charged up against the land, under section 
129, "with one year's interest at ten per cent of the amount 
of the tax due," and after that, section 177 has nothing to do 
with this back tax, which is carried forward and pays inter- 
est under section 129. Hence the court did not err as ap- 
pellant avers. 

The counsel for the people insist that this imposition of 
one per cent is a penalty and not interest. If so, the statute 
must be construed strictly; and as there has been a penalty 
of like character imposed under section 129, the statute will 
not be liberally construed to impose two penalties on the 
same land. 

In People v. Thatcher, 95 111. 109, p. 113, this court holds 
that this section 177, of 1879, has no application to taxes 
levied before its passage. 

Mr. Justice Mulkey delivered the opinion of the Court: 

This is an appeal from a judgment and order of sale ren- 
dered by the county court of Cook county, at its July term, 
1880, of certain real estate belonging to appellee, for the 
taxes, interest and costs thereon for the years 1873 to 1879, 
inclusive. This property had been regularly forfeited to the 
State for the taxes thereon for the several years mentioned 
previous to 1879. 

Upon the hearing of the case, it was insisted by the col- 
lector that the court should, under the 177th section of the 
Revenue act, include in its judgment interest on the total 
amount of taxes from the 1st of May, 1880, at the rate of 
One per cent a month. The court, however, refused to allow 



176 The People ex rel. v. Peacock. [March 



Opinion of the Court. 



this claim on the back taxes, but allowed it on the taxes of 
1879, and we think properly. So much of the 177th section 
of the Revenue act just referred to as provides that " unpaid 
taxes shall bear interest after the first day of May, at the 
rate of one per cent a month until paid," etc., did not go 
into effect until the first of July, 1879, and to extend its pro- 
visions to the taxes of 1878 and prior years would be to 
give it a retrospective operation, which it was not intended to 
have. The People ex rel. v. Thatcher, 95 111. 109; In re Tuller, 
79 id. 99. Indeed, the rule is well recognized that statutes, 
except those relating to remedies exclusively, will not be 
given a retrospective operation unless the intention to do so 
is manifest. . 

But even outside of this general principle, which forbids 
the giving of statutes a retrospective effect, we are of opin- 
ion the ruling of the county court was right. By reference 
to the provisions of the revenue act, it will appear" that a 
large portion of the amount designated as back taxes, where 
the taxes have been running for a number of years, as in the 
present case, will necessarily consist of accumulated interest 
upon interest, and it is not reasonable to suppose that this 
highly penal provision was intended to be extended to those 
items which, strictly speaking, are not taxes at all, and this 
would necessarily be done if held to apply to the back taxes, 
for they are so blended together that they could not be dis- 
tinguished. And it is a well recognized principle that penal 
statutes are to be strictly construed, and are never to be 
extended, by mere implication, to either persons or things not 
expressly brought within their terms. 

Appellee assigns a cross-error questioning the ruling of 
the court in allowing the one per cent a month on the taxes for 
1879. The argument is this: It is claimed first, that this one 
per cent a month is, both in name and fact, interest — in its 
ordinary legal sense — being nothing more than the compen- 
sation which the legislature has undertaken to provide in a 
particular class of cases for the forbearance of money due 



1881.] The People ex ret. v. Peacock. 177 

Opinion of the Court. 

from the tax-payer to the State. In the second place it is 
insisted that since this per cent is merely interest, the section 
in question fixing the rate, being a special law, is in conflict 
with section 22 of article 4 of the constitution, which forbids 
the passing of any local or special law regulating the rate of 
interest on money. 

The position assumed is certainly not without force. Yet 
it is a well recognized principle that courts will not so con- 
strue a statute as to render it unconstitutional, if any other 
reasonable construction can be placed upon it which will 
render it effective and legal. Conforming to this familiar 
rule of construction, we are inclined to hold that the one per 
cent per month on the delinquent taxes, provided for in the 
177th section, is not interest at all, in the legal and appro- 
priate sense of the term, but is, strictly speaking, a penalty, 
and hence does not fall within the provision of the constitu- 
tion, as supposed. 

It is suggested, in answer to this view, that, considered as 
a penalty, the act in question is but an attempt on the part of 
the legislature to impose a penalty upon the tax-payer with- 
out affording him an opportunity to be heard in defence, and 
is therefore invalid. We do not so regard it. He is given, 
in all such cases, his day in court. On the application for 
judgment against the land for the taxes, ample opportunity 
is afforded him to be heard on that and all other questions 
affecting the right of recovery. 

Upon the whole, we are of opinion the judgment of the 
county court was right, and it is therefore affirmed. 

Judgment affirmed. 






12—98 III. 



178 Tomxinson et al. v. Matthews et al. [March 

Syllabus. 

Amanda Tomlinson et al, 

v. 

Geoege A. Matthews et aL 

Filed at Springfield March 21, 1881. 

1. Fraudulent conveyance — giving preference to one creditor. A debtor 
in failing circumstances may prefer one creditor to the exclusion of others, 
when he does so in good faith and for a valuable consideration, and the same, 
rule applies to cases of a settlement by a husband upon his wife in payment 
of an indebtedness from him to her. 

2. Same — husband may prefer his wife in paying his debts. Under the 
principles deducible from the decisions of this court growing out of the legis- 
lation respecting married women and their separate property, the husband 
may prefer the wife (she being a creditor) to other creditors, provided the 
preference is based upon a valuable consideration and is made in good faith. 

3. Where a married woman actually loaned her husband money which she 
derived from her father and his estate, taking the husband's notes for its re- 
payment, and she did not know at the time of making the loans that he was 
in failing circumstances, and he afterwards conveyed a tract of land to her, 
not worth any more at the time than the amount due from him to her, such 
conveyance was held valid as against creditors of the husband whose debts 
were contracted prior to the conveyance. 

4. Although a person may be credited upon the faith of his ownership 
of property, this will give the creditors no specific lien upon it, or prevent 
his subsequently selling and conveying the same to a purchaser in good faith 
paying a valuable consideration for it, and a creditor may purchase whose 
debt may thereby be paid, although other creditors be left unpaid. 

5. Married women — common law disabilities changed by statute. Under 
the legislation of this State, the common law disabilities of married women 
are completely changed, and the common law rights of the husband in re- 
spect to his wife's property have been abrogated. As respects her separate 
property, the husband and wife stand before the law as strangers. 

6. Same — she may make her husband her agent. A married woman may 
make her husband her agent to collect debts due her, to receive from others 
the income of her estate, and to manage and control it in her name, and under 
this principle his dealings with it will be presumptively in the character of 
agent. 

Appeal from the Circuit Court of Montgomery county; 
the Hon. Jesse J. Phillips ; Judge, presiding. 



1881.] Tomlinson et aL v. Matthews et al. 179 



Briefs of Counsel. 



Mr. R. McWilliams, and Mr. Edward Lane, for the 

appellants: 

It is admitted by an agreement in the record, that at the 
time of the conveyance to Mrs. Tomlinson, and the hearing, 
the property .was worth only $2000. The husband being 
justly indebted to her in that amount, the conveyance to his 
wife is not fraudulent. A debtor in failing circumstances 
may prefer one creditor and pay him in full to the neglect 
of others. Cross v. Bryant. 2 Scam. 43; Howell v. Edgar, 
3 id. 417; Powers v. Green, 14 111. 387; Wilson v. .Pearson, 
20 id. 87; Finley v. Dicker 'son, 29 id. 9; Hessing v. McClos- 
Jcey, 37 id. 344. 

The husband and wife, since the Married Woman's act, as 
respects her separate property or estate, stand before the 
law as strangers. Patten v. Patten, 75 111. 451. 

Money of the wife loaned to her husband, either before or 
after marriage, is a proper charge against him while living, 
and against his estate after his death. Whitford v. Daggett, 
84 111. 144; May v. May, 9 Neb. 16; Logan v. Hall, 19 
Iowa, 491; Pluber v. Huberts Admr. 10 Ohio, 37; Wood v. 
Warden, 20 id. 518. 

A sale to a relative is not a badge of fraud. Nelson v. 
Smith, 28 111. 501; Cameron v. Savage, 37 id. 172; Taylor v. 
Moore, 2 Eandolph, 563; Patrick v. Patrick, 77 111. 560; 
Bump on Fraudulent Conveyances, 314. 

Fraud must always be proved — it is never presumed. 
Wright v. Glover, 27 111. 430. 

Mr. Ben. E. Johnson, and Mr. J. M. Teuitt, for the 

appellees: 

As direct evidence can not be had, circumstances tending 
to prove fraud may be considered. Swift v. Lee, 65 111. 336. 

A husband may convey property to his wife under the law 
of 1874, and the deed be good between the parties, but it 
may be fraudulent as to the creditors of the husband. Leopold 
v. Krause, 95 111. 440. 



180 Tomlinson et al. v. Matthews et al. [March 



Opinion of the Court, 



The Revised Statutes of 1874, chapter 68, section 9, page 
577, answers the question whether the wife as to her separate 
property can be a creditor of her husband, in the affirmative. 
It also answers the question whether the husband or wife, as 
to one conveying property to the other, stands before the law 
as strangers, in the negative. 

The case of Whitford v. Daggett, 84 111. 144, and the other 
authorities cited by the plaintiffs in error, are all case's be- 
tween the husband and wife, or her and the administrator 
of his estate, where the rights of third persons were not ad- 
judicated. 

Where a husband used the capital of his wife in his own 
name with her consent, she will not be allowed to interpose 
her claim as against the creditors of her husband. Hockett 
v. Bailey, 80 111. 75; Wortman v. Price, 47 'id. 22; Patton v. 
Gates, 67 id. 164. 

Mr. Justice Scholfield delivered the opinion of the 

Court: 

The general principle that a debtor in failing circumstances 
may prefer one creditor to the exclusion of others, when 
he does so in good faith and for a valuable consideration, has 
been often announced in opinions by this court. Cross v. 
Bryant, 2 Scam. 43; Howell v. Edgar, 3 id. 417; Powers v. 
Green, 14 111. 387; Wilson v. Pearson, 20 id. 87; Finlay v. 
Dickerson, 29 id. 9; Hessing v.McCloskey, 37 id. 342; Morris 
v. Tillson, 81 id. 607. 

In Patrick v. Patrick, 77 111. 555, we held the same doctrine 
to be applicable to cases of settlement by husband upon the 
wife, quoting with approval this language from 2 Kent's 
Commentaries, (8th ed.) 166, side page 174: 

"The settlement made after marriage, between the husband 
and wife, may be good, provided the settler has received a 
fair and reasonable consideration in value for the thing set- 
tled, so as to repel the presumption of fraud. It is a sufficient 
consideration to support such a settlement, that the wife re- 



1881.] Tomlinson et a?, v. Matthews et al. 181 

Opinion of the Court. 

linquishes her own estate, or agrees to make a charge upon it 
for the benefit of her husband, or even if she agrees to part 
with a contingent interest; but the amount of the considera- 
tion must be such as to bear a reasonable proportion to the 
value of the thing settled, and when valid, these post-nuptial 
settlements will prevail against existing creditors and subse- 
quent purchasers." See also, to like effect, 1 Bishop's Law of 
Married Women, § 735, et seq. ; Barnwell's Exr. v. Lumsden, 
24 Grattan, 443. 

The common law theory, that the wife was deemed to be 
under the power and coercion of her husband, and her sepa- 
rate legal existence so merged in his legal existence that 
she was incapable, except in certain limited cases, of con- 
tracting with him or with others, has been completely changed 
in this State by legislation. And we have said, by virtue of 
this legislation, where "her estate is under the statute, the 
common law rights of the husband, in respect of the property 
of the wife, can have no influence whatever, simply because 
the statute has abrogated them. The relation of the parties 
may be considered with reference to the weight to be given, 
or inference drawn from, their conduct and dealings, with 
regard to her separate property. Tn the determination of 
a claim of the wife upon the husband, like that here in- 
volved, it is indispensable for the judicial mind to become 
fully conscious of the change wrought by the statute, and 
that husband and wife, as respects her separate estate, stand 
before the law as strangers. Hence she may, as has been 
repeatedly decided by this court, make her husband her agent 
to collect debts due her, to receive from others the income 
of her estate, and to manage and control it, in her name, 
and, under this principle, his dealings with it will be pre- 
sumptively in the character of agent. His receipt of pro- 
ceeds and income, with her consent, will be in that char- 
acter, and for her, and they will not, in deference to marital 
legal rights, thereby become his property. If the husband 
claim such income as a gift, or other legal transfer thereof, 



182 Tomlinson et al. v. Matthews et ah [March 

Opinion of the Court. 

by the wife to him, the burden is upon him to establish his 
claim by evidence." Patten v. Patten, 75 111. 451. 

And, again, in Whitford et al. v. Daggett, 84 111. 144, 
where bill in chancery was brought by the widow against the 
heirs and representatives of the intestate to admit her as a 
general creditor of the estate for certain moneys lent to him 
by her before their marriage, and other moneys lent to him by 
her after their marriage, Ave said : " Since our statute of 1861, 
relating to the rights of married women, the husband does not, 
by marriage, acquire title to the money and personal property 
of the wife. * * Money of the wife loaned to the husband, 
either before or after marriage, is a proper charge against 
him while living, and against his estate after his death." See 
also Hamilton v. Hamilton, 89 111. 349. 

So, also, upon like principle, in VanDorn v. Leeper, 95 
111. 35, we held that an agreement between husband and 
wife, whereby he was to buy land for the wife, pay for 
the same with money inherited by her as her separate 
estate, take a deed therefor in his own name, convey to a 
third person and have such third person convey to her^ 
when executed, was free of legal objection, and completely 
vested the title in her. 

And, in Tyberandt v. RaucJce, 96 111. 71, where the only 
proof that a conveyance was fraudulent was the fact that it 
was made by an indebted wife to her husband, and they both 
testified that the conveyance was executed in consideration 
that the husband undertook to pay certain specified debts of 
the wife, which was not a grossly inadequate price for the 
property, and that he had since paid the same, we held there 
was not sufficient proof of fraud to defeat the husband's 
equitable title. 

The necessary conclusion, from these authorities, is: 

1st. The husband may prefer the wife, (she being a cred- 
itor) to other creditors, provided the preference is based 
upon a valuable consideration, and is made in good faith. 



1881.] Tomlinson et al. v. Matthews et ah 183 

Opinion of the Court. 

2d. As to the property of the wife, protected as her sepa- 
rate property by the statutes in force, in reference thereto, 
the husband occupies the same relation as does a stranger. 
She may sell it or loan it to him, or constitute him her 
agent for its management and disposition; but a gift of it by 
her to him will not be presumed, in the absence of proof to 
that effect. 

Applying these principles to the facts in the present case, 
it is clear there is no ground to impeach the conveyance by 
Daniel Tomlinson to his wife, the appellant. 

There is no dispute that the conveyance was made in con- 
sideration, and as a payment of two promissory notes given 
by him to her— one for $1000, and the other for $750. The 
$1000 note bears date July 6, 1872, is payable to appellant 
or order, one year afcer date, with interest from date at ten 
per cent per annum. The $750 note bears date August the 
7th, 1876, and, likewise, is payable to appellant or order, 
one year after date, with interest from date at ten per cent 
per annum. The conveyances sought to be set aside bear 
date December 16th, 1878, and the payments, up to that 
time, made on the note, were inconsiderable, not aggregating 
to exceed $50, so that the amount then due, for principal and 
interest, largely exceeded $2000. By agreement of parties, 
it is a conceded fact that the property conveyed did not, at 
the time of the conveyances, exceed in value $2000, and it 
w r as of no greater value at the date of the trial in the court 
below. 

Here, then, was a sufficient consideration for the convey- 
ances, unless the promissory notes themselves have been 
impeached. We think the evidence, instead of impeaching 
the consideration of the notes, amply establishes its suffi- 
ciency. Both Daniel Tomlinson and his wife, the appellant, 
say these notes were given by him to her at, or reasonably 
near, the dates they respectively bear, for money before that 
time borrowed of her by him, and that this money was 
received by her, in part, from her father, in his lifetime, and 



184 Tomlixson et al. v. Matthews et al. [March 



Opinion of the Court. 



the balance from his estate since his death. There is not a 
particle of evidence, that we have discovered, that tends to 
show this is not the truth. 

She says, "I received from my father in his lifetime, in 
1862, $50.00; in 1863, §100.00; in 1864, $220.00; in 1865 
or 6, $200.00; in 1868, $75.00,"— making, in all, $645.00. 

Then, she says, after her father's death, she received from 
his administrator, in 1870, $197.77; in 1871, $194.44, which, 
added to the former amounts, makes $1037.21. And this 
money was, chiefly, loaned by her to her husband from time 
to time, as she received it, and the $1000 note was given in 
consideration thereof. She says the money was loaned to 
her husband, and he coincides in that statement, and that it 
was, at first, understood that he was to convey her some 
property for it, but afterwards he gave her the note. When 
this note was executed, Daniel Tomlinson was entirely sol- 
vent, as we understand the evidence. 

After the execution of this note, appellant received money 
from the administrator of her father's estate, as follows: In 
1873, $130; in 1874, $46; in 1875, $486; in 1875, $90; in 
1876, $572.88; in 1877, $572.44; making a total of $1897.32. 

From money thus received, she says she had loaned Turner 
Brothers $450. This money her husband collected, and she 
loaned it to him, together with $300 more of the money she 
had received from her father's estate, making the $750 for 
which the note of that amount was given. 

When her husband got this money, she says nothing was 
said about paying it back — but her intention was, it was to. 
be paid back; and from her husband's subsequent act in exe- 
cuting the note, it appears, quite clearly, that he also under- 
stood it was a loan and was to be paid back. 

The evidence negatives the idea that appellant knew that 
her husband was insolvent when he obtained the last money 
and executed the $750 note. Indeed it does not clearly 
appear that he then was, in fact, insolvent. 



1881.] Tomlinson et al. v. Matthews et al. 185 

Opinion of the Court. 

Were this a transaction between strangers, there could not 
be the slightest pretense for doubting that the notes were 
given for an ample valuable consideration, or for claiming 
that there is evidence to show that the conveyance was not 
solely and bona fide for the purpose of paying off the notes, 
and, to that extent, preferring the holder to other creditors. 

But appellees made proof that their debts were contracted 
before the conveyance, on the faith of Daniel Tomlinson's 
solvency, based, in part, upon a belief of his ownership of this 
property, which the records then disclosed; and Wortman v. 
Price, 47 111. 22, Patton v. Gates, 67 id. 164, and Hockett 
et al. v. Bailey, SQ id. 74, are cited and relied upon by coun- 
sel, as sustaining the proposition that, in view of these facts, 
the conveyance was a fraud upon their rights. An exami- 
nation of those cases will show that they were decided on 
very different states of facts from that involved in the present 
case, and that they can not, therefore, be held to be authori- 
ties to the extent claimed. In Wortman v. Price, there was 
a trial of the right of property, in which Mrs. Henrietta C. 
Price claimed the ownership of about seventy hogs, levied 
upon under an execution against her husband. She claimed 
the hogs belonged to her because her husband was doing 
business with her money; but there was countervailing proof 
that her name was unknown in the business, and that the 
hogs were purchased by her husband, in the course of his 
business, as his own property. 

In Patton v. Gates, the question was as to whom a promis- 
sory note belonged. Allen and Kirkpatrick entered into part- 
nership in the manufacturing and repairing of farming 
implements. They purchased a lot, built a house, purchased 
and put machinery in it, and procured material for carrying 
on the business. After a time, becoming involved, Kirk- 
patrick exchanged the manufactory and machinery with Utt 
for eighty acres of land, which he had conveyed to his wife, — 
and the note involved in the controversy was given on a sale 
and conveyance, by the wife, of this eighty acres of land. 



186 Tomlinson et at. v. Matthews et at. [March 

Opinion of the Court. 

So the case turned upon the question whether the convey- 
ance to Kirkpatrick's wife could be sustained as against his 
creditors, — she claiming to have furnished the money which 
Ivirkpatrick put into the firm. There was other evidence to 
rebut the truth of this claim. 

In Hoclcett et at. v. Bailey, the question again was as to the 
bona fides of a conveyance to the wife. The consideration 
of that conveyance was the conveyance by her husband 
to the grantors, of another tract of land. She claimed that 
tract had been purchased with money derived from her 
father's estate. But it was shown that her money first went 
into a farm that was bought in the name of and conveyed to 
her husband, — that this farm was sold and another bought 
with the proceeds, and this process repeated several times,— 
all in the name of the husband. 

In each of these cases, the ownership of the wife, by reason 
of the circumstances, was found to be merely colorable, and 
for the purpose of enabling the husband to avoid the pay- 
ment of his debts, and not bona fide and resting upon a val- 
uable consideration. 

The indebtedness from the husband to the wife is, in the 
present case, clearly made out. If the evidence can be cred- 
ited it is real, and not simulated or affected merely. There 
is no question here whether, as to particular property, she 
has so acted as to induce others to believe, and so believing, 
to credit her husband upon the faith of the belief that it was 
his. 

True, up to the time of the conveyance, creditors were 
induced to believe, and doubtless did believe, that this prop- 
erty belonged to Daniel Tomlinson. This was the truth, so 
far as we are advised by the record. But did this give cred- 
itors a specific lien upon this property? Certainly not. 
Although the property belonged to Daniel Tomlinson and he 
was credited upon the faith of such ownership, this did not 
prevent his subsequently selling and conveying it to a pur- 
chaser in good faith, paying a valuable consideration for it; 



1881.] Tomlinsox et al. v. Matthews et al. 187 

Opinion of the Court. 

and, as we have seen, that purchaser might be a creditor 
whose debt would be thereby paid, although other creditors 
would be left unpaid. It must, therefore, follow, that unless 
the wife, as a creditor, occupies a different position in respect 
of obtaining payment or security from her husband, from that 
occupied by other creditors, the fact that Daniel Tomlinson 
was credited because of his ownership of this property, can 
be of no importance. 

The statute does not place her upon a different footing, 
and we know of no reason why she should be. 

With the policy of the law allowing the relation of debtor 
and creditor to exist between husband and wife, we have 
nothing to do. The legislature has seen fit to authorize the 
creation of such relation between them, and it only remains 
for us to administer the law as we find it. 

The relation of husband and wife affords abundant facili- 
ties for colorable and fraudulent transfers, and, on this 
account, great care should be exercised in scrutinizing and 
weighing the evidence of transactions between them by 
which the rights of creditors are affected; but when the evi- 
dence clearly shows a transaction which, if it were between 
strangers, would be free of objection, Ave know of no valid 
reason why it shall be condemned simply because it is be- 
tween husband and wife. 

We are, for the reasons given, of opinion that the convey- 
ance under which appellant claims has not been successfully 
impeached as having been executed in fraud of the rights of 
creditors. 

The decree is reversed, and the cause remanded for further 
proceedings not inconsistent with this opinion. 

Decree reversed. 



188 Smith v. Brittenham. [March 



Syllabus. 



Columbus C. Smith 

v. 

Sarah J. Brittenham. 

Filed at Springfield, March 21, 1881. 

1. Former adjudication — decision as to parts of case. Where only two 
rulings of the circuit court in a case have been reviewed by this court — the 
denial of a motion to vacate the decree entered, with leave to answer, and an 
order awarding a writ of assistance — those being the only questions presented 
by the appeal and passed upon, the defendant will not be barred from having 
the original and main decree of the circuit court reviewed in this court on 
writ of error. 

2. Practice — notice of vacating an order of dismissal. Where a defendant 
has once been brought into court by service of process, he is bound to take 
notice of all orders made in the cause; and so where, at the second term, a 
bill in chancery was dismissed for want of prosecution, and two days after- 
wards, at the same term, the order of dismissal was set aside, it was held 
that no notice was required to be given to the defendant of the vacating of 
the order of dismissal and reinstating the cause. 

3. Contract — rescission — offer to return property received necessary. Before 
a party can rescind an executed contract for the exchange of lands for goods, 
on the ground of fraud, he must return or offer to return the goods received 
by him, unchanged in their condition, and if he has innocently changed that 
condition while ignorant of the fraud, so that he can not put the other party 
in as good a position as he was before the trade, he can not rescind. 

4. Chancery — sufficiency of bill to rescind purchase on the ground of fraud. 
On bill filed to rescind an exchange of land for goods taken of the defend- 
ant, on the ground of fraud, where the contract price of the goods was their 
original cost, not their value, an allegation that a large amount of goods in- 
cluded in the inventory was not delivered to the complainant, but, on the 
contrary, the value of the goods delivered was $5000 less than the amount of 
the inventory, it was held not to charge that any goods included in the inven- 
tory was kept back, under the rule that a pleading is taken most strongly 
against the pleader. 

5. In the same case the bill also alleged in general terms that the defend- 
ant made a false and fraudulent inventory of the goods, in which the com- 
plainant was cheated of a large amount, without stating in what respect the 
inventory was false and fraudulent: Held, that charges of fraud should 
not be general, but that the facts should have been stated on which the 
charges were made. 



1881.] Smith v. Brittenham. 189 

Brief for the Plaintiff' in Error. 

6. To rescind an executed contract for fraud, there must be damage as 
well as fraud, and this must clearly appear from the pleadings by the state- 
ment of facts. It is not sufficient that the proofs taken by the master may 
show fraud resulting in damages to the complainant, but the decree must be 
according to the allegations as well as the proofs. 

"Writ of Error to the Appellate Court for the Third 
District; — heard in that court on writ of error to the Circuit 
Court of DeWitt county; the Hon. Lyman Lacey, Judge, 
presiding. 

Messrs. Tipton & Ryan, for the plaintiff in error: 

1. The value of the land in controversy is material, and 
the rule of equity pleadings is that all material facts must 
be clearly and positively stated. The bill is defective in its 
frame. The rule in chancery is the same as at law, that 
every averment necessary to entitle the complainant to relief 
must be contained in the stating part of the bill, and if every 
necessary fact be not distinctly and expressly averred, the 
defect can not be supplied by inference or by reference to 
other parts of the bill. Primmer v. Patton & Co. 32 111. 
528 ; Wright v. Dome et al. 22 Pickering, 55. See also McEl- 
wain v. Mills, 9 "Wend. 548; Mclntyre v. Fuestus, 6 Paige 
Ch. R. 239; Spence v. Duren, 3 Ala. 250; Daniels v. Tag- 
gart, 1 Gill & John. 311 ; Edwards v. Manny, 1 Hawks, 359; 
Townsend v. Heneleron, 1 Bland, 236 ; Hood v. Inman, 4 
Johns. Ch. E. 437 ; Edioards v. Chilton, 4 W. Va. 352. 

2. When a bill is dismissed notice must be given to the 
opposite party of a motion to reinstate. Smith v. Wilson, 26 
111. 128; Tibbs v. Allen, 29 id. 535; Welch v. Louis et al 31 
id. 446. 

3. A party can not rescind a contract of sale without a 
return of the property purchased or received in exchange, in 
as good condition as when received, unless it is entirely 
worthless. Benjamin on Sales, p. 414, § 452; Griffith v. Fred- 
erick Co. Bank, 6 Gill & John. (Md.) 424; Martin v. Bardus, 
1 Freeman's (Miss.) Chancery, 35 ; Blen v, The Bear River and 



190 Smith v. Beittenham. [March 

Brief for Plaintiff in Error. 

Auburn Water and Mining Co. 20 Cal. 602; Fishery. Wilson, 18 
Ind. 1 23; Cook v. Oilman, 34 N. H. 557; Shephard et al. v. Fisher 
et al. 17 Ind. 229; Shaw et al. v. Barnhart, id. 183; DeShaw's 
Exrs. v. Robinson's Exrs. 17 Ark. 228; Weeks v. Rob, 42 N. 
H. 316; Clarkson v. Mitchel, 3 E. D. Smith (N. Y.) 269; 
Williamson v. Moor, 2 Disney (Ohio), 30; Getring v. Newell 
et al. 9 Ind. ,572; Garand v. Boling, 1 Hempst. 710; Lone v. 
Latimer, 41 Ga. 171 ; Turner, etc. v. .Trim Cfoy, ete. 3 Biss. 
52; Ellington v. .Km?^, 49 111. 449; Jarrett v. Martin, 44 Mo. 
275; Johnson v. TFaZ/cer, 25 Ark. 176. 

A party can not rescind a contract and at the time retain 
the consideration, in whole or in part, which he has received 
under it. Jennings v. Gage, 13 111. 610; Coolidge v. Bing- 
ham, 1 Metcalf, 550; Miner v. Bradley, 22 Pick. 457; Persley 
v. Balch, 23 id. 286; JVbrforc v. Young, 3 Greenleaf, 30; 
Cusliman v. Marshall, 21 Me. 122; Sumner v. Parker, 36 N. 
H. 449; TFee/js v. Robie, 52 id. 316; Buchenau v. Homey, 
12 111. 336. 

If the complainant, defendant in error, can not return the 
identical goods she received, so as to put plaintiff in error in 
statu quo, she can not rescind, but must sue at law. Barge 
v. Cedar Rapids, etc., R. R. Co. 32 Iowa, 101 ; Parker v. 
Marques, 64 Mo. 38; White v. Thayer, 121 Mass. 227; Bar- 
field v.Price, 40 Cal. 535; Groves v. Sanders, 3 Otto, 55; 
Constan v. Chapman, 3 Moak, 178, and notes; Grimollcy v. 
TH^s, 12 id. and notes; Scott v. Bilncy, 40' Miss. 119; 
Underwood v. West, 32 111. 397; Lamed v. Holmes, 40 Miss. 
30; Harding v. Hoodley, 11 Wheat, 103; Slaughter, Admr. v. 
Oem, 13 Wall. 379; Story on Sales, § 426; Story's Eq. Jur. 
§§ 494, 499. 

And the ability to restore the things purchased unchanged 
in condition, is indispensable to the exercise of the right to 
rescind, so that if she innocently changed that condition 
while ignorant of the fraud, she can not rescind. Benjamin 
on Sales, .supra; Hunt v. Silk, 5 East, 449; Blackburn v. 
Smith, 2 Exch. 783; Sully v. Team, 10 id, 535; Clark v. Dick, 



1881.] Smith v. Brittenham. 191 

Brief for the Plaintiff in Error. 

E. B. & E. 148; Savage v. Corning, 16 W. R., 1 Irish C. L. 
R, 434; 2 Chitty on Contracts, (11th Am. ed.) 1092; Morse 
v. Braehett, 98 Mass. 209; Lyon Y.Bertram, 20 How. (U. S.) 
149; Bartlett v. Drake, 100 Mass. 176; Coolidge v. Brigham, 
1 Metcalf, 547; Stevens v. Austin, id. 557; Kimbal v. Cunning- 
ham, 4 Mass. 502; Conner v. Henderson, 15 id. 319; Thayer 
v. Turner, 8 Metcalf, 550; Martin v. Roberts, 5 Cushing, 126; 
Shepherd v. Temple, 3 N. H. 455; Wiggin v. Foss, 4 id. 294; 
Zwc?/ v. Bundy, 9 id. 298; (7oo& v. Gilman, 34 id. 456; TFeo6 
v. £fowe, 24 id. 282; Monahan v. iVb?/es, 52 id. 232; Burton 
v. Stewart, 3 Wend. 236; Johnson v. TOm*, 2 Hill, 606; 
Hammond v. Buchmaster, 22 Vt. 375; .Fa;?/ v. Oliver, 20 id. 
118; J7/en v. Edgarton, 23 id. 442; Howard v. Cadwalader, 
5 Blackf. 225; Peters v. Gooch, 4 id. 511; Newell v. Turner, 9 
Porter, 420; Bacon v. Brown, 4 Bibb, 91; i?eed v. McGrew, 
5 Ham. 386; Potter v. Titcomb, 23 Me. 300; Jfeer's case, 4 
Del. & J. (Am. ed.) 586; Rawlins v. Niclcham, 3 DeG. & G. 
322. 

If a party, after discovery of the fraud, desires to rescind, 
he must announce his purpose and adhere to it. If he be 
silent and continues to treat the property received as his own, 
he will be held to have waived his objection, and will as con- 
clusively be bound by the contract as if the mistake or fraud 
had not occurred. This is especially applicable to specula- 
tive property like that here. Thomas v. Bartow, 48 N. Y. 200 ; 
Flint v. Wood, 9 Hare, 622; Jennings v. Broughton, 5 De G., 
M. & G. 139; Lloyd v. Brewster, 4 Paige, 537; Saratoga & S. 
R. R. Co. v. Rowe, 24 Wend. 74; Minium v. Main, 3 Seld. 
220; 7 Rob. Prac. C. 25, sec. 2, p. 432 ; Campbell v. Fleming, 1 
A. & El. 51; Sugden on Vendors, (14th ed.) 335; JDirnon 
v. Providence, W. & B. R. R. Co. 5 R. I. 130. 

The defendant in error should have offered in her bill to 
pay taxes and for repairs. Wilson v. Haeclcer et al. 85 111. 
349 ; Chambers et al. v. Jones, 72 id. 280. 

The former adjudications of this case by this court are not 
a bar to submitting the same now on its merits. 



192 Smith v. Brittenham. [March 

Opinion of the Court. 

Messrs. Lodge & Huston, and Mr. L. Weedon, for the 
defendant in error: 

The writ of error will not lie in this case after the partial 
reversal of the decree of the circuit court and a remanding 
of the cause for further proceedings. From these subse- 
quent proceedings an appeal was prosecuted to the Appellate 
Court, when the entire record was reviewed, and the entire 
decree affirmed, and this at the instance of the plaintiff in 
error. 

The rules governing the rescinding of trades do not apply, 
for no trade was, in fact, consummated between the parties to 
this suit. The deed was obtained by Smith, by means of 
false pretenses in writing — the false invoices; its delivery 
was procured by fraud, and the transaction did not amount 
to a trade between these parties, and hence there was no trade 
or contract to rescind. The essential element of two con- 
senting minds was lacking, and Mrs. B. acted under the 
belief that a trade had been made on the basis proposed by 
Smith, when in fact no such trade had been or ever was made. 

The doctrine of equity is compensation, — not to allow a 
party to rescind a contract and retain advantages under it. 
Bryant v. Brant, 42 111. 78. 

In Whitney v. Roberts, 22 111. 381, this court held that a 
deed obtained by fraud or deceit, was void and that the grantee 
of the defrauded party could set it aside in equity. 

There was no proof that any taxes were paid, or repairs 
or improvements made, and the rents exceed the value of the 
goods $800. 

Mr. Justice Sheldon delivered the opinion of the Court: 

This was a bill in chancery, filed in the circuit court of 
DeWitt county, on the 14th day of August, 1874, by Sarah 
J. Brittenham against Columbus C. Smith, to have set aside 
a conveyance of 237 acres of land, made by her to him on 
the 12th day of January, 1869, in exchange for a stock of 



1881.] Smith v. Brittenham. 193 

Opinion of the Court. 

goods, on the ground of alleged fraud on the part of Smith 
in the making of the contract for such exchange. 

Personal service of summons was had on Smith, and he 
failing to appear and answer, the bill was taken for confessed 
against him at the August term, 1874. 

At the following December term an order was made dis- 
missing the cause for want of prosecution, which order, two 
days afterward, at the same term, was set aside, and the cause 
reinstated without notice to Smith. He did not appear in 
the court until after the final decree. At the December term, 
1876, the cause was referred to the master, to take testimony, 
etc., who reported that the value of the goods received by 
the complainant was $4500, and the rental value of the land 
during; the time the defendant had held the same under the 
deed, to be $5300, and at the same December term the court 
rendered a decree cancelling the deed and setting off the 
value of the goods against the rent of the land. At the next 
March term Smith entered a motion to vacate the decree and 
for leave to answer the bill. Thecourt overruled the motion, 
from which decision Smith prosecuted an appeal to this 
court, and the ruling of the circuit court in refusing to set 
aside the decree and admit an answer, was affirmed. See 
Smith v. Brittenham, 88 111. 291. 

This court holding that this appeal did not bring before 
it anything but the decision of the circuit court overruling 
said motion, and the Appellate Court having in the mean- 
time been organized, afterward, Smith sued out a writ of 
error from the Appellate Court for the Third District, to the 
circuit court, and filed in the Appellate Court a complete 
copy of the record, and on a final hearing in that court at the 
November term, 1878, the decree of the circuit court, in the 
respect of ordering a writ of assistance to issue, was reversed, 
and in all other respects said decree was affirmed. The cause 
was remanded to the circuit court, where such proceedings 
were had, at the March term, 1879, that another writ of assis- 
tance was ordered by the circuit court. From this order 
13—98 III. 



194 Smith v. Brittenham. [March 

Opinion of the Court. 

Smith again appealed to the Appellate Court, and that court 
at the May term, 1879, affirmed the order of the circuit court, 
awarding the writ of assistance. 

From this judgment of affirmance Smith again appealed to 
this court, and the judgment was affirmed. See Smith v. 
Brittenham, 94 111. 627. Subsequently this present writ of 
error was sued out to the Appellate Court, by which the 
entire record in the case is brought up, and plaintiff in error, 
Smith, challenges the correctness of the decision of the Ap- 
pellate Court at its November term, 1878, affirming the 
decree of the circuit court except in the respect of the writ 
of assistance. 

Preliminarily, defendant in error insists that this writ of 
error will not lie, in view of the previous proceedings above 
recited, which have been had in the case, — that in consequence 
of them the decree of the circuit court has become res adju- 
dicata, and plaintiff in error therefore precluded from bring- 
ing in question its correctness. 

It is very clear that there has never been, in fact, any 
adjudication of this court in respect to the correctness of that 
decree. On the first appeal to this court we distinctly 
declared that there was nothing before us for consideration 
but the decision of the circuit court overruling the motion 
to vacate the decree and for leave to answer, and said we for- 
bore to remark upon the merits of the case. On the second 
appeal to this court, we said the appeal w T as not from the 
judgment of affirmance of the Appellate Court at its Novem- 
ber term, 1878, of the decree of the circuit court except as 
to the writ of assistance, but that it was from the Appellate 
Court's judgment of its May term, 1879, affirming the order 
of the circuit court awarding another writ of assistance, and 
that the entire record in the cause was not before us. 

Only the two rulings of the circuit court then have been 
reviewed by this court — the denial of the motion to vacate 
the decree, and the order awarding a writ of assistance — 
and it appears that this court declined to consider any thing 



1881.] Smith v. Brittenham. 195 

Opinion of the Court. 

further. Plaintiff in error is entitled to have reviewed in 
this court the propriety of the main decree of the circuit 
court, and we do not think that he should be barred from his 
present writ of error for that purpose, by anything which 
has transpired in the case heretofore. 

The plaintiff in error, Smith, makes the point, that after the 
dismissal of the cause in the circuit court at the December 
term, 1874, the subsequent vacating of the order and rein- 
stating of the case at that term was erroneous without notice 
to him of the motion for that purpose. We do not so think. 
Smith having before been brought into court by service of 
process, was bound to take notice of all the orders which 
were made in the cause at that same term of court, and as 
well after as before the making of the order of dismissal. 

We come then to the question of the correctness of the 
decree of the circuit court. The default of Smith admitted 
such facts as are properly alleged in the bill, and no more, 
and the inquiry is whether the bill states sufficient facts to 
warrant the decree. 

We give the bill in its material part. After describing 
the land and being seized of it, the bill proceeds: 

"Oratrix would further represent that while so seized of 
the land aforesaid, Columbus C. Smith, on or about the 1st 
day of January, A. D. 1869, made a proposition to the husband 
of oratrix to trade and exchange a stock of goods then owned 
by said Smith, for said land, the said Smith then and there 
proposing to said husband to buy said land at the sum of 
§14,000, and pay for the same in said stock of goods, at their 
original cost, and that the same were to be invoiced and the 
difference either way to be paid by the said parties; that after 
such negotiation the said proposition was communicated to 
oratrix; that upon the faith .of such representations, and un- 
dertakings on the part of said Smith, as to the invoice and 
price of said goods, oratrix consented to make such trade, 
and in consummation thereof, oratrix did, on the 12th day of 
January, 1869, in connection with her husband, make, exe- 



196 Smith v. Bkittenham. [March 



Opinion of the Court. 



cute and deliver to said Smith, a deed of general warranty 
for said land, a copy of which is hereto annexed and asked 
to be considered a part of this bill, and that in pursuance of 
the rights and powers of said deed, the said Smith entered 
into and took possession of said lands, and has continued in 
such possession ever since, receiving the rents and profits of 
the same. 

"Oratrix would further state that after oratrix consented to 
make said exchange upon the faith of said representations, 
the said Smith, to injure and defraud oratrix, made a false 
and fraudulent inventory of said goods, and then and there 
in such inventory did take advantage of said John A.Britten- 
ham, he being at the time, to some extent, unsound in his 
mind, and being incapable because of such unsoundness to 
protect the interests and rights of oratrix, and oratrix 
charges that a false and fraudulent inventory of such goods 
was made for the purpose of cheating oratrix, and that in 
such inventory, the same being false, oratrix was cheated out 
of a large amount; and oratrix further states and charges 
that a large amount of goods included in the inventory was 
not delivered to her, or her said husband, or to any person 
for their use; but on the contrary, the value of the goods 
delivered was $5000 less than the amount of inventory. 
Oratrix further states that said goods were not worth to ex- 
ceed $4000; that the amount not delivered of the goods as 
aforesaid, and the falsity of said inventory, reduced the actual 
value of the goods received by oratrix to the said amount of 
$4000; that oratrix was ignorant of said fraudulent act of 
the said Smith until a short time — to-wit: five days — before 
the meeting of the last term of this court; that oratrix was 
not skilled in business of merchandise or the value of dry 
goods, and that owing to said condition of her said husband, 
he was wholly unfit to detect said fraud or protect the rights 
of oratrix in the consummation of said trade; said Smith 
still has the title and possession of said land; that the rents 
and profits of said land since the said Smith got the same, 



1881.] Smith v. Brittenham. 197 



Opinion of the Court. 



have been and are sufficient to pay said Smith whatever said 
goods were worth as delivered to oratrix under said trade. 
Forasmuch as your oratrix is without an adequate remedy, 
except in a court of equity, oratrix asks that said Smith be 
made defendant herein, that he may be required to answer 
this bill, but not on oath, answer on oath being waived, that 
an account be stated between the parties as to the value of 
said goods and the use of said lands, that if anything be due 
defendant on such accounting, oratrix is ready and waiting 
to pay said defendant, that in consequence of the deception 
and bad faith as aforesaid the defendant be required to recon- 
vey said land to oratrix, and that said sale be rendered null 
and void ; and your oratrix asks such further relief," etc. 

It will be seen that the bill does not show that the goods 
traded by Smith for the land have been returned or offered to 
be returned to him, or any excuse for not doing so. In 
Buchenau v. Homey, 12 111. 338, this court said: "A party 
can not rescind a contract of sale, and at the same time retain 
the consideration he has received. He can not affirm the 
contract as to part, and avoid the residue, but must rescind 
in toto. He must put the other party in as good condition as 
before the sale, by a return of the property purchased. There 
may be an exception when the subject matter of the sale is 
entirely worthless. But if it is of any benefit to the seller, 
the purchaser must restore it before he can put an end to the 
contract." And see Wolf v. Dietzsch, 75 111. 205, among many 
other cases in this court, to the same effect. 

Mr. Benjamin, in his work on Sales, § 452, says upon this 
subject: a And if he (the buyer of goods) has paid the price, 
he may recover it back on offering to return the goods in the 
same state in which he received them. And this ability to 
restore the thing purchased unchanged in condition is indis- 
pensable to the exercise of the right to rescind, so that if the 
purchaser has innocently changed that condition while igno- 
rant of the fraud, he can not rescind." 



198 Smith v. Brittexham. [March 

Opinion of the Court. 

If there be any excuse in the case which could be accepted 
for not making, or offering to make return of the goods, none 
whatever is shown by the bill, so that the general rule as 
above stated must apply here; and under that rule the bill 
makes no case of a right to rescind the contract. 

Aside from the above we are of opinion the facts alleged 
in the bill are not sufficient to authorize the decree. There 
is an attempt to set up two matters as ground for the rescis- 
sion of the contract — the making of a false and fraudulent 
inventory of the goods, and the not delivering of a large 
amount of goods included in the inventory. In respect to 
the last the charge is, "that a large amount of goods in- 
cluded in the inventory was not delivered to her, — but, on the 
contrary, the value of the goods delivered was $5000 less 
than the amount of the inventory." 

Now, taking this whole charge together, it really does not 
charge that any goods included in the inventory were kept 
back. The attempted statement that there was, in the first 
clause, is rendered valueless as an allegation of such a fact 
by the last clause stating what was done in that regard, 
namely, "but, on the contrary, the value of the goods deliv- 
ered was $5000 less than the amount of the inventory." So 
that, taken altogether, the whole charge in that respect, as 
we read it, is, that the value of the goods delivered was 
$5000 less than the amount of the original cost price as ap- 
pearing by the inventory. The amount of the inventory, we 
take to be the amount of the inventory prices, and the inven- 
tory prices to be the original cost prices of the goods. If it 
be susceptible of any other meaning, such meaning is not 
obvious, and the above is the meaning we conceive, which, 
as against the pleader, is entitled to be put upon that expres- 
sion. 

Now, what does it matter in the way of entitling complain- 
ant to relief, that the value of the goods received was $5000 
less than the amount of the inventory — the amount of the 
original cost prices of the goods? The contract price for the 



1881.] Smith v. Brittexham. 199 

Opinion of the Court. 

goods was the original cost of the goods, not the value of the 
goods, and the discrepancy between the value of the goods re- 
ceived and the original cost price of the goods, would fur- 
nish no ground for any relief under the contract. 

The other charge is in the general terms that defend- 
ant made a false and fraudulent inventory of the goods, in 
which complainant was cheated of a large amount, without 
at all naming in what respect the inventory was false and 
fraudulent. Charges of fraud should not be general, but the 
facts should be stated on which the charges are based. New- 
ell v. Bureau Co. 37 111. 253. 

After alleging that the goods were not worth to exceed $4000, 
then the whole amount of damage, as resulting from both 
the said causes of complaint, is stated to be, " that the amount 
not delivered, of the goods, and the falsity of said inventory, 
reduced the actual value of the goods received by oratrix 
to the said amount of $4000." What damage or ground of 
complaint does this show under the contract? Reduced the 
value of the goods from what sum, or from what? 

The actual value of the goods may not have been more than 
$4000, and yet the original cost price, at which they were to 
be taken, have been as much as $14,000, the full agreed price 
for the land. As already observed, the value of the goods 
is unimportant. It is their original cost price which is the 
essential thing. It is noteworthy that the bill fails to state 
anything as to the original cost of the goods, or as to the 
inventory price, or as to any discrepancy between the in- 
ventory price and the original cost. It but states the value 
of the goods received, proceeding, seemingly, upon the theory 
that the discrepancy between their value and that of the 
land, Avas ground sufficient for having the contract rescinded, 
or at least that that was enough of damage to show. There 
must be damage, as well as fraud. They must concur, for 
the annullment of a contract. The facts alleged do not 
show damage. The bill does not make a case for the rescind- 
ing of the contract of sale of the land. 



200 Seaver v. Cobb. [March 



Syllabus. 



It is said that proofs taken by the master show a case. 
Without looking into them to see whether they do or not, 
it is not enough that they may do so,— they can not supply 
the want of allegations in the bill. The decree must be 
according to the allegations as well as proofs, and, unless 
the bill states sufficient facts to warrant the decree, it can 
not stand. 

The judgment of the Appellate Court will be reversed, 
and the cause remanded, with directions to reverse the de- 
cree of the circuit court, and remand the case, with leave 
to amend the bill if complainant shall be so advised, and 

with liberty to answer. 

Judgment reversed. 

Scott, J.: I dissent from the conclusions reached on all 
the questions discussed in this opinion. 



Abram K. Seaver 

v. 
Francis H. Cobb. 

Filed at Springfield March 21, 1881. 

1. Tax title — who may acquire — as to party in possession. A party may 
lawfully purchase a tax title on land, acquired while he was in possession 
of the same, when he has no claim of title to the land when the taxes mature 
and the sale is made, and may assert the same against any one who assails 
his possession. 

2. There is a class of cases where the person in possession is not allowed 
to obtain any benefit, by such a purchase, such as a tenant holding a lease, or 
a purchaser in possession under a contract for a deed, or a mortgagor. In 
such cases the party will be estopped from purchasing a tax title he has 
allowed to accrue while in possession, and thus defeat the title of the person 
under whom he holds. 



1881.] Seaver v. Cobb. 201 

Briefs of Counsel. Opinion of the Court. 

Appeal from the Circuit Court of Perry county; the Hon. 
George W. Wall, Judge, presiding. 

Mr. L. H. Hite, for the appellant: 

When a party holds such a relation to land or its owner 
that it is his duty to pay the taxes, he can not allow the land 
to be sold for taxes and become the purchaser, and thus 
defeat the title of the owner. Burroughs on Tax. 352. 

Mere possession of the land when the tax for which 
it is sold is assessed, does not prevent the party from pur- 
chasing, but if the party in possession claims title to the land 
or some interest therein, he can not purchase. Ibid ; Mc- 
Minn v. Whelan, 27 Cal. 300; Lacy v. Davis, 4 Mich. 152. 

Mr. C. "W. Thomas, for the appellee, contended that 
the appellee, who neither owned nor claimed to own the 
land, but who was in possession under a claim that it was 
government land, not subject to taxation, had no duty to 
the State or to any person to pay the taxes and could there- 
fore have bought himself at the sale for taxes in 1870, and 
consequently it was competent for him to buy the tax title 
from Bonham, citing Blackwell on Tax Titles, 470; Vorisv. 
Thomas, 12 111. 442; Glancy v. Elliott, 14 id. 456; Blakely 
v. Bester, 13 id. 708. 

Mr. Justice Walker delivered the opinion of the Court : 

This was an action of ejectment, for the recovery of a 
tract of land in St. Clair county. The venue was changed, 
by agreement, to Perry county. On the 7th day of May, 
1880, a trial was had in that court, by the court, a jury hav- 
ing been waived by the parties, when the court found the 
issues for the plaintiff, and rendered judgment in his favor, 
and awarded a writ of possession. Thereupon defendant 
prayed and perfected an appeal, and the case came to this 
Division by agreement of the parties. 



202 Seaver v. Cobb. [March 

Opinion of the Court. 

The evidence shows, that appellee entered into possession of 
the land in 1866, under the supposition that it belonged to 
the general government. He attempted to enter it under 
some Indian scrip issued by Congress. But the officers of 
the land office rejected the application. Appellee introduced 
and read in evidence, the collector's notice of application for 
judgment against this land at the June term, 1870, a judg- 
ment against the land for taxes, affidavit to the delinquent 
list, a precept, a certificate of purchase of the laud to M. M. 
Bonham, the affidavit of the agent of Bonham of the ser- 
vice of notice on Cobb, who was in possession, of the pur- 
chase for taxes, and to redeem, etc. Also receipt for 
taxes of 1870 and 1871. A deed from the collector to Bon- 
ham, under the tax sale, dated the 18th of October, 1872. 
Also a deed from Bonham to appellee, dated the 1st of June, 
1873, to Cobb for the land in dispute. Appellant offered no 
evidence. No exceptions were taken to the admission of 
this evidence. 

It is urged as ground of reversal, that appellee, being 
in possession, was bound to pay all taxes levied on the 
land, and failing to do so, he could not acquire title by pur- 
chasing the tax title from Bonham. It is not disputed that 
the land was delinquent for the taxes for the year 1869, 
for which the land was sold. Nor is it denied that the State 
had ample power to make the sale, or that Bonham, the pur- 
chaser at the tax sale, was fully competent to purchase, and 
receive a tax deed. The regularity or validity of any step 
taken by the revenue officers, from the assessment of the land 
for taxes till the delivery of the tax deed to the purchaser, 
was not disputed. All of these proceedings stand unques- 
tioned, and as no objection was raised, we must regard all 
irregularities, if any exist, as being waived. Nor are we 
called on to determine if omissions of legal requirements by 
those engaged in the collection of taxes are cured by the 
191st section of the Revenue law. The only question we are 
called upon to determine is, whether appellee was estopped 



1881.] Seaver v. Cobb. 203 

Opinion of the Court. 

by any rule of law or public policy from purchasing the tax 
title from Bonham. 

The question of whether appellee was precluded from pur- 
chasing at the tax sale when he was in possession, for the 
taxes that had accrued whilst he was thus in possession, is 
not before us, but whether he had the right to purchase from 
Bonham after his purchase was perfected by a tax deed, and 
thus unite it with and protect his possession, is urged for 
decision. It is undoubtedly the policy of the law, that all 
taxes should be collected, and it is the duty of the owner to 
pay the taxes levied on his property. But when the public 
lias received all taxes imposed on the property, what further 
interest can it have in the matter? Public policy is then 
fully subserved. The tardy tax-payer has done nothing that 
deserves punishment or the creation of disabilities. Then 
why inflict them? See Cooley on Taxation, p. 350-1. Can 
it be that a person, by mistake or accident failing to pay 
taxes on his farm, and it is purchased by another, who 
acquires a deed, is precluded by public policy or any rule of 
law from receiving a conveyance from the purchaser or his 
assignees? Must such a title remain outstanding bevond the 
power of the former owner to remove or extinguish it? Does 
the law impose such penalties and disabilities for such acci- 
dents, mistakes, or even for gross inattention or neglect? 
The law is intended to be reasonable and just in all of its 
requirements, but such a rule Avould be harsh in the extreme 
and palpably unjust. 

There is a class of cases where the person in possession 
is rightfully prevented from obtaining winy benefit by such a 
purchase. A tenant holding a lease, a purchaser in posses- 
sion under a contract for a deed, or a mortgagor, is estopped 
from so purchasing as to affect the title of the persons under 
whom they hold. 

In cases where persons hold fiduciary relations it would be 
inequitable and unjust to permit them, when thus in posses- 
sion, to acquire a tax title that would defeat the claim of the 



204 Seaver v. Cobb. [March 

Opinion of the Court. 

vendor, the landlord, mortgagee, or cestui que trust. This rule 
of estoppel in pais is illustrated by the cases of Voris v. 
Tliomas, 12 111. 442; Glancy v. Elliott, 14 id. 456, and others 
in this court. But between the rule announced in these 
cases, and the facts of this case, there is a broad distinction. 
This case depends on other and different principles. 

In this case appellee was in fiduciary relations with no 
one. He had done no act that imposed the duty on him to 
protect the title for any one. He was simply in possession, 
but claimed no title, but on the contrary was asserting that 
the title was in the general government, and was endeavor- 
ing to purchase title of the government. He, if in under 
any one, claimed it to be the general government, and it was 
under no duty to pay taxes, nor was appellee under any obli- 
gation to perform any duty to the general government in con- 
nection with the land. Then to whom did he owe the duty 
of paying the tax? If to any one, it was the State and muni- 
cipalities levying and entitled to receive the taxes. And they 
obtained them by the sale of the lands. They have no far- 
ther claim or concern with the land, its title, ownership or 
possession. Then what rule of law, of morals, or public 
policy, has appellee violated by purchasing and receiving a 
conveyance from Bonham of his tax title? We are unable 
to perceive any omission of duty on his part. 

If he had claimed to be the owner, it would no doubt have 
been his duty to pay the taxes, but failing in that he surely 
would not be prevented from purchasing in outstanding titles, 
or removing clouds on his title. Had he been a tenant hold- 
ing under another claiming title, and had he purchased at 
the tax sale as from Bonham, as he did, such purchase by him 
would not have affected the title of his landlord, but would 
have inured to his benefit. 

This case is distinguishable from the case of MoMinn v. 
Whelan, 27 Cal. 300, as in that case the purchaser of the tax 
title was in possession, claiming the title to the land. Here 
appellee was in possession, but claimed no title in himself, 



1881.] Binkert v. Wabash Ry. Co. 205 

Syllabus. 

but that it was in the general government. In that case the 
court held that it was the duty of the person in possession, 
claiming title, to pay the taxes, and when he purchased it in 
for taxes, he but paid them and discharged his duty. Con- 
ceding the correctness of the rule announced in that case, it 
does not govern this, as the facts are materially different. 
The judgment of the court below is affirmed. 

Judgment affirmed. 



Anton Binkert et al. 

v. 

The Wabash Railway Company. 

Filed at Springfield March 21, 1881. 

1. Decree — presumption that the evidence sustained the findings of the court. 
Where no bill of exceptions or certificate of evidence is found in the record 
of a chancery case, the propriety of the decree must be determined exclusively 
from the allegations of the bill, and the facts found by the court as stated in 
the decree, as it must be presumed the evidence was sufficient to sustain such 
findings. A court of review, where nothing appears to the contrary, will in- 
dulge in all reasonable presumptions to sustain the decree of the lower court. 

2. If a decree specially finds to be true every material fact in the bill, and 
contains no findings at all modifying the effect of the facts thus found, it will 
follow that if the facts charged in the bill are sufficient to sustain the decree, 
then the decree is not erroneous. 

3. Same — effect of finding a chattel mortgage was a valid lien before lien for 
taxes attached. Where the decree, upon a bill to enjoin the levy of a collector's 
warrant upon pei*sonal property of the complainant, issued upon an assessment 
of the same against a former owner, finds that the mortgage under which 
the complainant claims was a valid lien on the property prior to the as- 
sessment, and delivery of the warrants to the collector, this will amount to a 
finding that 'the mortgage was properly acknowledged and recorded, or 
that possession must have been taken under it before it expired, the pre- 
sumption being in favor of the finding of the court. 

4. Same — as to person not served. A bill to enjoin the sale of conv 
plainant's personal property for taxes levied against a former owner, 
made the collectors of several counties defendants, among whom was the 



206 Binkekt v. Wabash Ey. Co. [March 



Svllabus. 



collector of Scott count}', who, by mistake, was named as Coats. There 
being no service on him, an amendment was made to the bill in which the 
name of the collector of that county was correctly given, who appeared and 
answered, and the cause proceeded to final decree, without question as to the 
regularity of the proceedings. It was objected that the decree being joint, 
if erroneous as to any one defendant, must be reversed as to all. But the 
court did not regard that the decree was against Coats, it being intended to 
be against the collectors only, but held, that whether it was rendered against 
him or not, it could not, in the slightest manner, prejudice the other de- 
fendants. 

5. Ciiakcery — papers — how incorporated in the record. A copy of a mortgage, 
and a stipulation of the parties that it might be used in evidence the same as 
the original, transcribed into the record, but neither of which is in any manner 
verified, is insufficient, and does not make them a part of the record; .and 
even if they were considered, the stipulation would not make the mortgage 
evidence or show it was offered in evidence and considered. 

6. Same — finding of fact not alleged, or defectively alleged. The findings of 
a decree, in reference to a matter about which there is no allegation what- 
ever, can not be sustained; but this rule does not apply to cases where the 
facts found by the decree have been defectively stated in the bill. Therefore, 
a statement in a bill, of the making of a chattel mortgage, will fully warrant 
the court in finding it was a valid lien, in the absence of objection to the suffi- 
ciency of the allegation. 

7. Same — finding a mortgage a valid lien is not a mere question of law. A 
recital in a decree of foreclosure, finding the mortgage to be a prior valid 
lien, does not render the decree erroneous, as finding a mere conclusion of law. 
The validity of a mortgage is frequently a mixed question of law and fact, 
and depending upon the existence or non-existence of other facts and cir- 
cumstances. 

8. Taxes — not a lien on personal property until collector receives warrant. 
The statute makes a lien for the taxes assessed upon personal property only 
from and after the tax books are delivered to the collector, and this lien has 
no reference to the property originally assessed, but it attaches to all the per- 
sonal property of the tax-debtor. Therefore, if the person assessed on any 
article of personal property, executes a valid mortgage upon the same, or 
makes a valid sale thereof, before the tax books are received by the collector, 
the person holding under such mortgage or sale will hold the property free 
from any lien on the same for the taxes, and a levy upon and sale of the same 
for the taxes will be enjoined. 

9. Same — of the lien on land. The statute makes taxes assessed upon 
real property a lien thereon from and including the first day of May in 
the year they are levied until the same are paid. The tax on each tract is 
kept separate and distinct from the taxes on every other tract, and such 



1881.] Binkert v. Wabash Ry. Co. 207 

Brief for the Plaintiffs in Error. 

tax becomes a debt, not only against the owner, which may be recovered in a 
personal action, but also a charge upon that particular tract of land and no 
other tract. 

Writ of Error to the Circuit Court of Montgomery 
county. 

Messrs. Wise & Davis, for the plaintiffs in error: 

A mortgage of the rolling stock of a railroad company, to 
be valid as to third parties, must be acknowledged and re- 
corded as required by the Chattel Mortgage act, and runs 
only for two years. Palmer v. Forbes et al. 23 111. 301 ; Hunt 
v. Bulloch et al. id. 320; Hoyle v. Plattshurg and Montreal 
Railroad Co. 54 N. Y. 314. 

Taxes on capital stock of a corporation become a lien on all 
personal property of the corporation from the time the tax books 
are received by the collector. Hilletal. v. Figley, 23 111. 419. 

For the purposes of taxation the mortgagor of property is 
the owner, and the lien for taxes takes precedence of the 
mortgage, as well as of all other claims and liens. 

A warrant for a tax upon capital stock of a corporation 
creates a lien upon the franchise and intangible property 
superior to any mortgage thereon made prior to the assess- 
ment, even if it be not superior to any mortgage on the tan- 
gible personal property. 

He who seeks equity must do equity, and the tax warrants 
being a lien on the franchise and intangible property, the de- 
fendant in error can not hold such property and at the same time 
obtain relief in equity, without payment or tender of the tax. 
Mills v. Johnson, 17 Wis. 598; Hilliard on Taxation, 472. 

The lien of the State is superior to all liens and claims of 
individuals or corporations. Atkins v. Hinraan, 2 Gilm. 449; 
JDunlap v. Gallatin Co. 15 111. 7; Dennis v. Maynard et al. 
id. 481; Forth v. Fursley, '82 id. 152; Butler v. Bailey, 2 
Bay, 244; N. and C. Bridge Co. v. Douglas et al. 12 Bush, 
673; Philips v. Rouse, 49 Mo. 586; Harrington v. Hill'iard, 
27 Mich. 271 : Gledney v. Deavers, 8 Ga. 479. 



208 Binkert v. Wabash Ry. Co. [March 

Brief for the Defendant in Error. 

Messrs. McClernand & Keyes, also for the plaintiffs in 
error: 

A tax is a specific charge or lien upon the property, with- 
out regard to its ownership or any prior liens. Dunlap v. 
Gallatin Co. 15 111. 7; Dennis v. Maynard, id. 477. 

The State, in enforcing its lien, is not limited to the interest 
of the tax debtor in the property, and may reach the property 
liable for its payment without regard to liens and transfers prior 
or subsequent to the assessment. Payment of the taxes due on 
one specific part of personal property will not release it from 
levy and sale for taxes upon another part of such property. 

Capital stock of a corporation is taxable as personal prop- 
erty. Pointer v. Rockford, Rock Island and St. Louis Rail- 
road Co. 76 111. 561. 

Defendant in error took, under its mortgage, all the per- 
sonal property subject to the lien thereon for the taxes due 
on the capital stock and franchise, and is equitably bound to 
pay them. 

Messrs. Hay, Greene & Littler, and Mr. G. B. Bur- 
nett, for the defendant in error: 

The first point made by the plaintiff in error is that a 
joint decree, void as to one defendant, is void as to all. There 
is no decree against Coats, and the decree is not joint, but 
several. Each defendant may perform or refuse to perform 
the decree, and the others will not be responsible for his acts. 
Besides, a party can not assign for error that which does not 
affect him. Tibbs et al. Y.Allen, 27 111. 119; Van Valhenburg 
et al. v. Trustees, etc. 66 id. 103; Smith v. Hickman, 68 id. 
314; Clark v. Marfield, 77 id. 258; Richards v. Greene, 78 
id. 525; Hedges et al. v. Mace et al. 72 id. 472; Fonville v. 
Sausser et al. 73 id. 451. 

It is also urged that the chattel mortgage is invalid. The 
mortgage set out in the amended record is no part of the 
record. There is nothing to show it was read in evidence. 
To have become a part of the record it should have been pre- 



1881.] Binkert v. Wabash Ry. Co. 209 



Brief for the Defendant in Error. 



served in a certificate of evidence. Mason v. Blair, 33 111. 
194; Eaton et al. Y.Sanders et al. 43 id. 435; Walker v. 
Casey, 53 id. 470; Mcintosh v. Sanders, 68 id. 128; Brochen- 
brough v. Dresser, 67 id. 225. 

When no evidence is otherwise preserved, the findings of 
fact stated in the decree are conclusive. Sheen v. Hogan, 86 
111.16. 

A tax on personal property becomes a lien only from the 
time when the warrant for its collection comes into the hands 
of the collector. Hill v. Figley, 23 111.419; Gormley's Ap- 
peal, 27 Pa. St. 49. 

The taxes assessed upon the capital stock and franchise 
after the execution of the mortgage will not divest the inter- 
est of the mortgagee, and those claiming under the mortgage, 
as to the other personal property included in the mortgage 
upon which the taxes have been paid. Gaar, Scott & Co. v. 
Hurd, 92 111. 315. 

When the mortgage was executed the mortgagor owned 
nothing more than an equity of redemption, and when the 
alleged tax lien accrued it could not operate on anything 
more than such equity of redemption. 

Section 253 of the Revenue law declares that the taxes 
assessed against real estate shall be a lien thereon from and 
including the first day of May in the year in which they are 
levied. But the taxes assessed upon personal property are 
made a lien upon the personal property of the person assessed, 
from and after the tax books are received by the collector. 
Sec. 254. 

Section 255 provides that each class of property may, under 
certain circumstances, be made liable for taxes due upon the 
other class by the same owner, but it creates no lien what- 
ever. A lien may be perfected under it, by the proper steps, 
but the section itself, by its own force, can not raise such a 
lien. Schaffer v. State, 60 111. 179. See also Bill v. Figley, 
23 id. 413; Same v. Same, 25 id. 158. 
14—98 III. 



210 Binkert v. Wabash Ey. Co. [March 

Opinion of the Court. 

The words of the statute which give a lien on personal 
property for the tax on other personal property, do not ex- 
pressly, or by necessary implication, attempt to divest any 
prior lien or extinguish any interest vested in another party. 
The lien is given on the property of the person assessed. 
Sec. 354 Rev. act. 



Mr. Justice Mulkey delivered the opinion of the Court: 

This was a bill in chancery, filed by defendant in error on 
the 11th of April, 1868, in the Madison county circuit 
court, againstthe plaintiffs in error as collectors of taxes of 
the several counties in this State through which the railway 
of defendant in error runs, to enjoin the collection of the 
taxes assessed on the capital stock of the Toledo, Wabash and 
Western Railroad Company for the years 1873 and 1874. 

It appears from the bill and findings of the decree in this 
case, that the Toledo, Wabash and Western Railroad Com- 
pany, on the first day of January, 1873, being then the owner 
of what now constitutes the railway, rolling stock, franchise 
etc., of the Wabash Railway Company, executed thereon a 
mortgage, or deed of trust, to the New York Guaranty and 
Indemnity Company, to secure an indebtedness of the rail- 
road company amounting to five million of dollars, which 
mortgage, in a few days thereafter, was duly recorded in the 
several counties through which the road runs; that subse- 
quently, in the years 1873 and 1874, this property was as- 
sessed as the property of the Toledo, Wabash and Western 
Railroad Company; that default having been made in the 
payment of the mortgage debt, legal proceedings were insti- 
tuted in February, 1875, to foreclose the mortgage, and such 
proceedings were had that a decree was rendered directing 
the sale of the mortgaged property; that the property, in 
pursuance of the decree, was subsequently sold by a special 
master, and John W. Ellis, Alexander M. White and others 
became the purchasers; that the property was duly transfer- 



1881.] Binkert v. Wabash Ey. Co. 211 

Opinion of the Court. 

red and conveyed by deed to the purchasers, and the sale and 
transfer approved and confirmed by the court; that the said 
purchasers afterwards sold and conveyed the same to defend- 
ant in error, and that since that time the defendant in error 
has been the owner and in the possession and control of the 
same; that all taxes assessed upon the tangible property had 
been fully paid, but that the taxes assessed upon the capital 
stock for the years 1873 and 1874, as above stated, were still 
unpaid, and that warrants for their collection were then in the 
hands of the collectors, which they were threatening to levy 
upon the property of defendant in error. Upon this state of 
facts, the court below perpetually enjoined the collection of 
the taxes in question. 

The evidence upon which the decree was rendered has not 
been preserved. No bill of exceptions or certificate of evi- 
dence is to be found in the record. The propriety of the 
decree, therefore, must be determined exclusively from the 
allegations in the bill and the facts found by the court as 
they appear in the decree itself, as it must be presumed that 
the evidence was legally sufficient to support the findings of 
the court. Indeed, it is a general rule that a court of review, 
where nothing appears to the contrary, will indulge in all 
reasonable presumptions for the purpose of sustaining the 
decree of the lower court. 

Upon an inspection of the decree, it will be readily seen 
that it specially finds to be true every material fact charged 
in the bill, and that, on the other hand, it contains no find- 
ings that, in our judgment, at all modify the legal effect of 
the facts thus found. It must, therefore, follow that if the 
facts charged in the bill, conceding them to be true, are 
sufficient to sustain the decree, the circuit court committed 
no error in rendering it. 

It is conceded, in the argument, that before the assessment 
of the taxes in controversy, the Toledo, "Wabash and Western 
Railway Company executed the deed of trust or mortgage 
through which the defendant in error claims title, on the 



212 Binkert v. Wabash Ey. Co. [March 

Opinion of the Court. 

property now sought to be taken in satisfaction of the taxes; 
but it is claimed that the mortgage was neither acknowledged 
and recorded as a chattel mortgage, nor was possession taken 
of the mortgaged property until after the warrants for the 
collection of the taxes came into the hands of the collectors, 
and that, therefore, notwithstanding the mortgage, the prop- 
erty is liable for the taxes. But the answer to this is, that 
the decree specifically finds that the mortgage under which 
defendant in error claims was a valid lien on the property 
prior to the assessment and delivery of the warrants to the 
collectors, and if this finding of the court is true, and so we 
must consider it, the mortgage must have been properly ac- 
knowledged and recorded, or possession must have been 
taken under it, provided the statute in reference to chattel 
mortgages has any application to railroad mortgages, like the 
one in question, of which we at present express no opinion. 
By way of reply to this, it is said that the decree also shows 
that the mortgage expired on the 1st of January, 1875, and 
that the commencement of the suits of foreclosure and the 
appointment of a receiver did not occur until in the follow- 
ing month, and that by reason of the delay in taking posses- 
sion of the mortgaged property, the lien under the mortgage 
was lost, and the tax lien thereupon attached. The trouble 
with this position is that it assumes that possession was not 
taken of the mortgaged property until after the warrants 
came to the collectors' hands, a fact which does not appear 
by the decree. If any of the findings of the decree were 
necessarily incompatible with the fact that the mortgage was a 
valid lien on the property before the warrants came to the 
hands of the collectors, the argument would have much force 
in it, but they are not. For aught that appears from the 
record, the mortgagee may have taken possession of the prop- 
erty at the time of the execution of the mortgage, and con- 
tinued in possession till superseded by the receiver. There 
is no proof on this subject one way or the other, and all pre- 



1881.] Binkeut v. Wabash Ky. Co. 213 

Opinion of the Court. 

sumptions must be indulged in favor of the findings of the 
court. 

Even the mortgage is not before us, to enable us to deter- 
mine what, if any, provisions it contained on that subject. 
It is true, we find in the transcript what purports to be a 
copy of such a mortgage, and also what purports to be an 
agreement between the parties to this suit, that such copy 
might be used in evidence with like effect as if the original, but 
neither the agreement nor the supposed copy is in any manner 
verified except by simply being copied into the transcript by 
the clerk. That, as has often been held, is not sufficient, and 
does not make them a part of the record. The law has pre- 
scribed the manner in which this may be done when desired, 
but there has been no compliance with it in this instance, 
even if there was any intention of doing so. It is well settled 
that even exhibits to bills and answers, when sought to be 
used as evidence, when not of such character as the court will 
take judicial notice of their genuineness, must, like any other 
instruments of evidence, be satisfactorily identified and 
proven. But even if we were permitted to consider these in- 
struments, there is nothing in the record to show the supposed 
copy was used in evidence, for the stipulation, assuming it to 
be one, does not make it evidence in the cause, but only 
authorizes it to be done if desired. 

But it is further suggested, that the decree, in so far as i£ 
finds the mortgage to be a prior valid lien on the property, 
is not based on any allegation in the bill to that effect, and 
for that reason it must be regarded as both erroneous and in- 
operative. 

It is conceded that the findings of a decree with reference 
to a matter about which there is no allegation whatever, can 
not be sustained. But this principle has no application to 
cases where the facts found by the decree have been merely 
defectively stated in the bill. There is no question as to the 
fact that the bill in the present case distinctly avers the 
making of the mortgage, and as every valid mortgage of ne- 



214 Binkert v. Wabash Ey. Co. [March 

Opinion of the Court. 

cessity implies a lien, we are of opinion that this averment, 
in the absence of objections to its sufficiency, fully warranted 
the court, if the facts justified it, as we must presume they 
did, in finding the mortgage was a valid lien as stated in the 
decree. 

It is finally objected, that the finding of the decree, in this 
respect, is a mere conclusion of law, and for that reason, also, 
it is erroneous and inoperative. 

We do not regard this position tenable either. It is the 
constant and universal usage for courts of equity to investi- 
gate and determine, as matters of fact, questions of this char- 
acter. They are known to the law as mixed questions of law 
and fact, and when they arise in a court of law, if required, 
they have to be submitted to a jury, though not precisely in 
the form the present question is presented. 

Whether a lien is created by an instrument purporting to 
be a mortgage must, of necessity, depend, in every case, upon 
a variety of circumstances. Every condition essential to the 
validity of a contract, in addition to the requirements 
of the statute, if, as before stated, it has any application to 
mortgages of this kind, is involved in such an inquiry. 

If, for illustration, the instrument has been obtained by 
fraud, proof of such fact, when set up by way of defence, will 
defeat the lien ; and so of various other defences that might 
be suggested. In the case supposed, assuming the mortgage 
to be regular on its face, the existence or non-existence of 
the lien would depend, solely, upon the fact whether it had 
been obtained by fraud or not. 

Of course, where no question is made with reference to a 
mortgage, except what appears on its face, the court will then 
say, as matter of law, whether the instrument is valid as a 
mortgage, or not; or, in other words, whether or not it 
creates a valid lien. Yet that is but an illustration of the 
general principle, that where the facts are conceded or defi- 
nitely ascertained, the court will then determine, as matter of 
law, the conclusions to be deduced from them. 



1881.] Binkert v. Wabash Ey. Co. 215 

Opinion of the Court. 

Whether an instrument is operative as a mortgage, or, in 
other words, creates a lien upon the property, is no more a 
mere conclusion of law, than whether a given instrument is 
the last will and testament of an alleged testator, or whether 
one claiming as heir or executor, is entitled to a particular 
estate. All issues of this kind present, for the determination 
of the court, mixed questions of law and fact. We are 
clearly of the opinion there is nothing in this objection. 

For the purposes of taxation, so far as this controversy is 
concerned, we agree with plaintiff in error, there is no differ- 
ence between the tangible and intangible property, and the 
rights of the parties to it must be determined just as though 
no such distinction existed. 

We regard the situation of the parties precisely as if the 
taxes in question had been assessed upon the tangible prop- 
erty instead of the capital stock. If the property of the. 
present company could be held for the taxes in the one case, 
it can in the other. And whether it can be held in either 
depends upon whether the law, by reason of the assessment 
of personal property, gives a specific lien upon it for the taxes, 
that follows it into whosesoever hands it may happen to come, 
until they are paid ; and this really is the most important 
question involved in the case. 

In support of the affirmative of this proposition, counsel 
for plaintiff in error have cited a number of cases, but, in 
our judgment, none of them sustain it. Most of them are 
cases in which the tax sought to be enforced was assessed 
upon real property, which is governed by principles essen- 
tially different from those which are applicable to assessments 
on personal property. 

Under our system of taxation, and that of other States, so 
far as we are advised, the tax on each tract of land is kept 
separate and distinct from the tax on every other tract, and 
such tax not only becomesa debt against the owner, which 
may be recovered in a personal action, as in other cases, but 
a charge upon that particular tract of land, and no other, and 



216 Binkert v. "Wabash Ry. Co. [March 

Opinion of the Court. 

upon the payment of such tax the owner may sell and convey 
the same, free from all charges on account of taxes assessed 
against other tracts. But, in default of such payment, the 
law authorizes, in addition to the remedy given against the 
owner personally, a direct proceeding against the land itself, 
by which judgment may be had against it, just as though it 
were a person, and it may finally be sold under such judg- 
ment. Inasmuch, therefore, as the land, as well as the owner, 
is primarily liable for the tax, whoever purchases it or other- 
wise succeeds to the title, must necessarily take it subject to 
the charge until the tax is paid. If any such specific charge 
is created upon a personal chattel by reason of its assess- 
ment, it is clear the law has provided no means by which the 
public may know, as in the case of real property, the extent 
of such charge. Indeed, the very observance of the law 
prescribing the manner of keeping tax-books renders it abso- 
lutely impossible to even learn its extent. 

So it would follow, if one, any time after assessment, 
though months before the taxes were due, should buy a horse, 
cow, or other article of property, and the party to whom it 
was assessed should happen, in the meantime to fail, the only 
way the purchaser could obtain a clear title to the property 
would be to pay all the personal taxes of the insolvent tax- 
debtor, and this, in some cases, might be equivalent to a loss 
of the property altogether. If such were the law, no man 
could know when he was safe in buying property, for the 
effect of it would be to create an almost infinite number of 
secret liens — which the law ever abhors — against which no 
prudence, care or foresight could protect one. Nothing but 
a clear, unequivocal declaration of the law-making power 
would satisfy us that the legislature ever intended to sanction 
such a state of things. 

If it had been the intention of the legislature to create a 
specific charge upon every article of personal property, to 
the extent of the tax assessed on its valuation, as it has on 
each tract of land, some provision certainly would have been 



1881.] Binkert v. "Wabash Ey. Co. 217 

Opinion of the Court. 

made by which the extent of the charge could be definitely 
ascertained, so as to prevent great hardships and frauds upon 
innocent purchasers. And since this has not been done, in 
the absence of any express provision to that effect, we must 
hold that it was not the intention of the legislature to create 
any such charge. 

We do not deem it necessary to review the various provi- 
sions of the statute that may be supposed to have some bear- 
ing on the question. To do so would lead to unwarrantable 
prolixity. Suffice it to say, we have carefully examined the 
entire Revenue act, and do not find in it a single section, 
clause or sentence that seems in the slightest degree to 
favor the view suggested, but, on the contrary, many of 
its provisions clearly lead to the very opposite conclusion. 
The whole revenue system is purely statutory, and it is 
well settled that all tax liens exist only by reason of positive 
statutory enactments. 

What we have here said with reference to the inconven- 
iences and hardships growing out of secret liens, is directed 
against the hypothesis that such liens, under our revenue 
system, have any existence until after the tax books come into 
the hands of the collector. Of course these same inconven- 
iences exist to a limited extent after that time, but they are 
not to be extended by judicial construction. 

While the right to raise revenue by taxation is necessarily 
inherent in every government, yet, in all constitutional gov- 
ernments, like ours, this right is regulated bylaw, and can 
only be exercised in the manner and for the purposes speci- 
fied in the constitution and the statutes of the State. 

This question is not left in doubt by our legislature. It 
has spoken in terms that leave no just ground for misappre- 
hension. Section 253, of the Revised Statutes of 1874, pro- 
vides as follows: "The taxes assessed upon real property 
shall be a lien thereon, from and including the first day of 
May in the year in which they are levied, until the same are 
paid." 



218 Binkert v. Wabash Ey. Co. [March 

Opinion of the Court. 

The next section, 254, is in these words : "The taxes 
assessed upon personal property shall be a lien upon the per- 
sonal property of the person assessed from and after the tax 
books are received by the collector." 

By virtue of one or the other of these provisions every 
tax lien exists. The statute having in both cases fixed a 
definite time when the lien shall commence, is equivalent to 
saying it shall not commence before that time. The lien 
given for the personal tax has no reference to the property 
originally assessed, but it is a lien that attaches to all the 
personal property of the tax-debtor, without regard to 
whether it was previously assessed or not. The very word- 
ing of the section directly negatives the idea that the lien 
has any special reference to the previously assessed property, 
or that it creates any lien at all upon such property, unless it 
belongs to the tax-debtor at the time the tax books come to 
the hands of the collector. Had the legislature intended 
anything of that kind it would have provided that the taxes 
should be a lien upon the property assessed, and not, as it has, 
upon the property of the person assessed. When the tax 
books come to the collector's hands, the personal taxes at 
once, and not before, just like an execution, become a lien 
upon all the personal property which the person assessed 
then owns, without regard to what he may have owned when 
the assessment was made. This is the plain provision of 
the statute, and the construction now given it is in strict 
conformity with the previous decisions of this court. 

It is further objected that the decree in this case is void as 
to one of the defendants, and being a joint decree it must be 
reversed as to all. It is admitted that counsel for plaintiff 
in error state the law correctly on this subject, and the only 
question is whether the case is brought within the principle. 

The bill, after setting out the interest of the defendant in 
error in the property sought to be charged with the taxes, 
proceeds to charge that the collectors of the several counties 



1881.] Binkert v. Wabash Ry. Co. 219 

Opinion of the Court. 

■through which the road runs, including that of Scott county, 
had in their hands certain tax warrants which they were 
ahoufc to levy upon the property in question. The bill then 
charges that certain persons, naming them, are respectively 
collectors of these counties, among whom one John H. Coats 
is mentioned as collector of Scott county, and a summons was 
issued against him as such. 

R. A. Blair, the then sheriff and collector of Scott county, 
returned this summons with an indorsement thereon, to the 
effect that the same was not served, for the reason there 
was not then and never had been, any one in his county an- 
swering the description of "John H. Coats, collector of 
Scott county." 

Subsequent to this return, and without any further steps 
being taken to bring Coats into court, an amendment was 
filed to the bill, in the entitling of which the name of Robert 
A. Blair, the real collector, was substituted for that of Coats, 
and the latter's name does not further appear in the proceed- 
ings. After the substitution of Blair's name for Coats, Blair, 
as collector of Scott county, filed an answer to the amended 
bill, and the cause proceeded to decree without any question 
being made as to the regularity of the proceeding. 

Under this state of facts we do not understand any decree 
was entered against Coats. The objection urged, therefore, 
has no foundation in fact. But even if this were not so, we 
do not regard the objection well taken for other reasons. ' It 
clearly appears from the record that the suit was originally 
instituted against Coats under a mistake of fact. The suit 
was brought against him in a supposed official character, 
which the return of the officer and the amended bill shows 
he did not sustain. There was really no one in esse answer- 
ing the description of John H. Coats, collector of Scott 
county, and it therefore follows, whether the decree was or 
was not rendered against him, can not in the slightest manner 
prejudice the parties here complaining. The record shows 



220 Binkert v. Wabash Ey. Co. [March 



Mr. Justice Walker, dissenting;. 



conclusively that if there be such an individual as John H. 
Coats, he can not, as a mere private individual, have the 
slightest interest in the suit that could in any manner affect 
the rights of plaintiffs in error, and such' being the fact it 
is clear they have no right to complain on the ground sug- 
gested. 

Perceiving no error in the record, the decree of the circuit 
court is affirmed. 

Decree affirmed, 

Mr. Justice Walker dissenting: 

I am unable to concur in the conclusion announced in this 
case, or the reasoning by which it is reached. It was stipu- 
lated that copies of the mortgage and other documents there- 
in referred to, might be read in evidence in place of the orig- 
inals. They were found on file in the case, and the clerk, 
after copying them, certifies that the transcript thus made is 
a true, perfect and complete record of the proceedings in the 
case. It is therefore reasonable to conclude that they were 
read on the hearing. The bill described the mortgage, its 
foreclosure and the sale of the property, and its purchase by de- 
fendant in error, as grounds for the relief sought. To succeed, 
defendant in error was compelled to prove the existence of the 
mortgage as alleged, and I am compelled to believe that the 
copy was read in evidence. The stipulation was made to en- 
able defendant in error to so read it, and as they could not have 
recovered without reading it or the original, and as the original 
is not on file in or among the papers in the case, and the copy 
is, the conclusion, to my mind, is irresistible, that the copy was 
read in evidence. Had a deposition been so filed the presump- 
tion would be that it was read, although there was no certifi- 
cate by the court, that it had been. Then why exclude the 
copy of the mortgage thus found, and when it had been 
agreed that it might be read? In regard to reading deposi- 
tions, there are no stipulations that they may be read, but the 
parties have a right to read them on a hearing, and because 



1881.] Binkert v. Wabash Ky. Co. 221 



Mr. Justice Walker, dissenting. 



of that right the law presumes they were read. So here, 
under the stipulation, complainant had the right to read the 
copy of the mortgage, and why not presume it was read? 

On turning to the copy of the mortgage, certified by the 
clerk to be a part of the record, we find that it was executed and 
acknowledged in the State of Ohio. Nor was there any, the 
slightest effort to conform to the Chattel Mortgage law, either 
in its acknowledgment, or having it entered on the docket of 
the justice of the peace, where the property was situated. The 
property on which the tax became a lien, was personal, and 
was included in the mortgage, and was of the character em- 
braced in and referred to in the Chattel Mortgage law; and 
the railroad was an intangible person, and derived its entire 
power to make a mortgage by the statute, and, in doing so, 
it must conform to the statute authorizing the corporation to 
make or receive a mortgage. A failure to do so renders it 
void, as it would, if made by an individual, and no reason is 
perceived why there should be any distinction made between 
natural persons and corporate bodies. If there are reasons, 
it is for the General Assembly, and not the courts, to allow 
them. The Chattel Mortgage law, in terms, embraces all 
mortgages on chattels. This court has uniformly held, and 
in many cases, that, in executing such instruments, a failure 
to comply with the statutory requirements renders them void 
as to third persons, and for the same reason I regard this 
mortgage as void so far as it related to personal property. 

If it was void, as I think it was, although prior in date 
to the tax warrants, as against them the mortgagee or trustee 
did not acquire a superior lien. When the warrants were 
delivered to the collectors, they became a lien superior to 
that of the mortgagee, and a foreclosure could not affect that 
lien, as it had attached long before complainant acquired 
title. The warrants still remained in the hands of the col- 
lectors, but had not been executed because of restraining 
orders and injunctions, until after the foreclosure and sale of 



222 Neimeyer v. Knight et al. [March 

Syllabus. Brief for the Appellant. 

the property, under the decree. The State should not be 
thus deprived of the power to enforce the collection of its 
revenue, by such restraining orders. 

I, therefore, hold that this decree should be reversed. 



Samuel Neimeyer. 

v. 
James Knight et al. 

Filed at Springfield March 21, 1881. 

1. Forfeiture — person who may enforce. A son received a conveyance 
of an eighty and forty acre tract of land from his parents, with a condition 
that he was to pay them a certain sum during their joint lives, and one-half 
thereof to the survivor for life, with a clause in the deed authorizing them or 
either of them to declare a forfeiture for non-payment, and he afterwards con- 
veyed the eighty acre tract to another in consideration of the undertak- 
ing on the part of the second grantee to fulfill the same conditions to his 
grantor's parents in proportion to the land conveyed to him, in which last 
deed it was provided that a failure to pay such sum of money, etc., should 
work a forfeiture of the title, and operate against the grantee therein the 
same as far- as it would have done against the grantor, and the second grantee 
having refused to pay the same to the grantor's parents, the latter paid it, 
and filed his bill to have the deed declared forfeited, to which the court sus- 
tained a demurrer: Held, that the contract, being between the complainant 
and defendant only, the former alone could insist upon the forfeiture 
after the payment by him to save his other tract, and that the court erred in 
sustaining the demurrer, and that the complainant, at least, was entitled to 
have the sum paid by him decreed a lien upon the land. 

Appeal, from the Circuit Court of Tazewell county; the 
Hon. Ninian M. Laws, Judge, presiding. 

Mr. C. A. Roberts, for the appellant: 

The demurrer admits all the facts well pleaded in the bill, 
viz: 

1. That the contract of sale between the complainant and 
Knight was, that the latter, as part and in fact the sole con- 



1881.] Neimeyer v. Knight et al. 223 

Brief for the Appellees. Opinion of the Court. 

sideration for the making of the deed by complainant, was to 
make certain payments at certain stated times. 

2. That, upon a failure to comply, the same should work 
a forfeiture of the contract, and complainant might go into 
court for the purpose of enforcing the forfeiture. 

3. That he did fail to comply, thereby giving the com- 
plainant the right to go into court to enforce the forfeiture. 

4. That parties have a right to provide a penalty to secure 
prompt performance of a contract. See 3£ason v. Caldwell, 5 
Gilm. 204. 

While it may be true a court of equity is loth to enforce 
forfeitures, yet, when parties provide in the contract itself 
that it shall be enforced in a court of equity, they will not 
afterwards be permitted to object to that forum. 

Mr. A. B, Sawyer, and Messrs. Green & Cohrs, for the 
appellees : 

Courts of equity do not favor forfeitures, and when one 
is prayed for in equity, a clear right to it must be alleged and 
proved. 

Under the deed, complainant has no authority conferred 
on him to declare a forfeiture. No one but Christian or 
Anna Neimeyer could enforce a forfeiture, and they could 
not, when paid their yearly charge, until a second default. 

In support of the position, that courts do not favor for- 
feitures, we refer to the following authorities: Home Life 
Ins. Co. v. Pierce, 75 111. 427; Palmer v. Ford, 70 id. 370; 
Hartford Fire Ins. Co. v. Walsh, 54 id. 169; Voris et al. v. 
Benshaw, 49 id. 426 ; Clark v. Lyons, 25 id. 105 ; Morgan 
et al. v.Herrick, 21 id. 497; Glover v. Fisher et al. 11 id. 666 ; 
4 Kent, 129 ; 1 Shep. Touchstone, 133. 

Mr. Justice Sheldon delivered the opinion of the Court : 

The question presented here is upon a demurrer to a bill 
in equity. 

On the 14th day of August, 1873, Samuel Neimeyer con- 
veyed to James Knight a certain eighty acres of land in 



224 Neimeyer v. Knight et al. [March 

Opinion of the Court. 

Tazewell county, in this State, the deed of conveyance con- 
taininp; the following: 

"It is further provided that this conveyance is made on 
the following terms, that is to say : Whereas, the party of 
the first part herein, did, on the 21st day of December, A. D. 
1872, purchase of his father and mother, Christian and Anna 
Neimeyer, the above tract of land, and another piece of forty 
acres, upon the conditions that the said first party herein was 
to pay to his said father and mother aforesaid the sum of §200 
per annum during the term of their joint natural lives, and 
when either the said Christian or Anna Neimeyer dies, then 
to the survivor thereof the sum of $100 per annum, payable 
annually so long as such survivor lives ; and upon a failure 
thereof a forfeiture may be declared of that deed by the said 
Christian and Anna Neimeyer, or either of them, by filing a 
petition through or in the circuit court of Tazewell county, 
Illinois." 

It was further provided that said Christian and Anna Nei- 
meyer should live on said premises conveyed as aforesaid at 
their will and pleasure, — and that the first party herein 
should keep the taxes on said land paid up, and that a failure 
so to do, during the lives of 'either the said Christian or Anna 
Neimeyer, should work a forfeiture of said deed. 

The deed then proceeds: "Now, therefore, this con- 
veyance witnesseth that in consideration of the premises, 
the party of the second part takes the land above described 
and undertakes to fulfill, in every particular, the above 
conditions, in proportion to the amount of land he gets, 
that is to say, he is to pay the sum of $100.33 J cents 
per annum, annually, to the said Christian and Anna ]Nei- 
meyer, during the term of their natural lives; and when 
either of them dies, to the survivor the sum of $66.66f cents 
per annum, annually, so long as the survivor lives; and a 
failure of paying said sum of money, and the taxes, according 
to the terms imposed as aforesaid, shall work as a forfeiture 
of this deed and to operate as against him the same as it 



1881.] Neimeyer v. Knight et al. 225 

Opinion of the Court. 

would have done as aforesaid, so far as the eighty acres above 
described is concerned." 

The bill was filed by Samuel Neimeyer against James 
Knight and others, in the circuit court of Tazewell county, 
on the 14th day of January, 1880, to enforce the aforenamed 
provisions contained in said deed from Neimeyer to Knight. 
The bill alleges that the only consideration for the making 
of the deed was the payment of the aforesaid sums of money 
by Knight to Christian and Anna Neimeyer, as above men- 
tioned; that upon the making of the deed, Knight took im- 
mediate possession of the land, and has held the same ever 

since; that on or about the said Anna Nei- 

meyer died; that on the 21st day of December, 1878, there 
remained due to Christian Neimeyer the sum of forty-nine 
dollars of the amount of sixty-six dollars and sixty-six cents, 
which should have been paid on that day by Knight to 
Christian jNeimeyer, according to the provision of such deed; 
that on the 21st day of December, 1879, there became due 
the further sum of sixty-six dollars and sixty-six cents, which 
Knight should have paid to Christian Neimeyer, according 
to such provision; that Knight has wholly neglected and re- 
fused to pay said sums of forty-nine dollars and sixty-six 
dollars and sixty-six cents ; that to prevent a forfeiture, as 
expressed in said deed from Christian and Anna Neimeyer to 
the complainant, complainant was compelled to and did pay 
to the said Christian Neimeyer the last two mentioned sums 
of money; that before making such payment he demanded 
of Knight that he should make the same, which he refused 
and still refuses to do, either to Christian Neimeyer or to 
complainant; that on the 2d day of January, 1880, complain- 
ant elected to declare the deed from himself to Knight for- 
feited, as provided in the -deed, and on that day gave to 
Knight a written notice, declaring the deed forfeited. The 
bill alleges that one John C. Sharp claims some interest in 
the land, but that it is subject and subordinate to the interest 
of complainant ; it makes Sharp a defendant together with 
15—98 III. 



226 Neimeyer v. Knight et al. [March 

Opinion of the Court. 

Knight and his wife, and prays for a forfeiture as expressed 
in the deed from complainant to Knight; that the deed be 
declared null and void, and the title and possession of the 
land be declared to be in complainant free from all claim of 
the defendants, or any one claiming through them, and for 
general relief. 

On petition of the Baker Manufacturing Company, it was 
granted leave to be made a party, the petition alleging that 
the company was the owner of a mortgage on the premises, 
made by Knight and wife to John C. Sharp, September 1, 
1879, to secure the payment of a note from Knight to Sharp 
for $1500, payable five years after that date, and that Sharp 
had assigned the note to said company. 

The bill was taken for confessed against Knight and wife. 
Sharp and the Baker Manufacturing Company filed demur- 
rers to the bill, which were sustained and the bill dismissed. 
The cause is before us on writ of error. 

It is objected, on the part of the defendants, that courts do 
not favor forfeitures, and that when a forfeiture is prayed for, 
in equity, a clear right to it must be shown; that Samuel 
Neimeyer, the complainant, has no power to declare a for- 
feiture, or enforce one, for non-payment of the annuity to 
Christian Neimeyer; that in the deed from Christian 
and Anna Neimeyer to complainant, it was provided that 
said Christian and Anna, or either of them, might declare 
such forfeiture by filing a petition in the circuit court of 
Tazewell county; and that, in this second deed from com- 
plainant to Knight, the terms of it are that the failure of 
payment should work as a forfeiture of the deed and operate 
against Knight the same as in the deed from Christian and 
AnnaNeimeyer to complainant; that is to say, that Christian 
or Anna Neimeyer could declare the forfeiture, and no one 
else is empowered so to do. And it is said that the annuity 
having been paid in full at the time the bill was filed, even 
Christian Neimeyer could not have properly brought the suit. 



1881.] Neimeyer v. Knight et at. 227 

Opinion of the Court. 

This, we think, is altogether too narrow a view to take of 
the contract between these parties, as evidenced by the pro- 
visions in this deed from complainant to Knight. The title 
to relief under the bill does not rest upon any mere technical 
right of forfeiture, and that to be strictly construed as against 
the exercise of the right. It was expressly stipulated by the 
deed that Knight should pay his named proportional share 
of this annuity, and it was the effect of the agreement con- 
tained in the deed that the land was taken and to be held 
subject to this payment by Knight, as a charge upon the land. 
The deed was from complainant to Knight, and the stipulation 
was between them. On Knight's failure to make the pay- 
ment as he had agreed, if there was not a right of strict for- 
feiture of his title, there was an undoubted right to subject 
the land to the payment. 

Although the stipulation of payment was to the benefit of 
Christian Neimeyer, the annuity being payable to him, it was 
not for his sole benefit; it was also for the benefit of the com- 
plainant, inasmuch as the charge of the whole annuity rested 
upon the forty acres of the land which he still retained, as 
well as upon the eighty acres he conveyed to Knight. The 
payment of the arrears of* the annuity by complainant to 
Christian Neimeyer before the bringing of the suit, so that 
at that time there was nothing in arrear to Christian Nei- 
meyer, did not fulfill the stipulation of payment by Knight. 
He was in default in not making the payment himself, and 
complainant has suffered in having to make the payment, 
which he was compelled to do, in order to the protection of 
the title of his forty acres of the land which he retained; 
and he is at least entitled to reimbursement out of the land 
conveyed to Knight. 

Sharp being a subsequent mortgagee of the land from 
Knight, of course he and his assignee, the Baker Manufac- 
turing Company, occupy no better position than Knight 
himself, under whom they claim. 



228 Elder v. Derby et al. [March 

Syllabus. 

We are of opinion the demurrers should have been over- 
ruled instead of being sustained, and the judgment of the 
circuit court will be reversed, and the cause remanded. 

Judgment reversed. 



William Elder 

v. 

"William H. Derby et al. 

Filed at Springfield March 21, 1881. 

1. Mortgage — cat out by sale on prior lien. Where the owner of lots con- 
veys them to another after the levy of an execution against him from another 
county, and the recording of the certificate of the levy thereon, and such 
grantee mortgages the same to a third person, a subsequent sale under the exe- 
cution and levy, and a sheriff'' s deed to the purchaser, after the expiration 
of the time for redemption, will extinguish the lien of the mortgage on the 
property. 

2. Recording law — applies only to subsequent purchasers, and not to prior 
ones. Where A executed a mortgage on lots to B, and the same were subse- 
quently sold under a prior lien against the same, and the time for redemp- 
tion passed, whereby the mortgage lien was extinguished, and about a j'ear 
after the date of the mortgage, A bought the same lots of the holder of the 
title, giving him a mortgage for the purchase money, which the vendor failed 
to place on record for several months, it was held that while the mortgage 
from A to B was revived as to the title subsequently acquired by A, B was 
not a subsequent purchaser, under the recording laws, and did not acquire a 
prior lien on the lots from the delay in A's grantor to record his mortgage. 

3. Subsequently acquired title — to tohom it luill inure. Where a party 
gives a deed or mortgage on land, the title to which fails, and the grantor or 
mortgagor afterwards acquires the title by deed, giving a mortgage back, as 
a part of the same transaction, to secure the purchase money, he will not in 
equity become seized of the title so subsequently acquired in such a manner 
that it will inure to his former grantee or mortgagee under the covenants 
of title in his deed or mortgage, as against the second mortgage. 

4. When a mortgage is in the statutory form, it is equivalent to one con- 
taining all the covenants of title, and any title the mortgagor may subse- 
quently acquire, will inure to the benefit of the mortgagee in the same con- 



1881.] Elder v. Derby et at, 229 

Statement of the case. 

dition the mortgagor took the same, and will revive such mortgage, if extin- 
guished by sale under a prior lien, to the extent of such newly acquired title, 
but no further. 

Appeal from the Appellate Court for the Third District; 
— heard in that court on appeal from the Circuit Court of 
Moultrie county; the Hon. C. B. Smith, Judge, presiding. 

Appellant filed his bill in chancery, against William Derby, 
superintendent of schools of Logan county, and a number of 
other persons, to foreclose a mortgage executed by William 
Hoggatt to William Elder and George W. Hoggatt, to indem- 
nify them as sureties on a note for $2161.20, given to one 
Morrill. It is conceded that Elder had paid this note. This 
mortgage covered the lots in controversy. 

Derby and Aultman & Co. answered, and the bill was dis- 
missed as to Bassett, and taken as confessed as to the other 
defendants. It is conceded that the claim of Aultman & Co. 
is subordinate to that of appellant and appellee. On a hear- 
ing the court decreed Derby's mortgage a first lien on the 
lots, and the case is brought here by appeal from the Appel- 
late Court. 

The parties submitted the cause to be tried by the court, on 
the following agreed facts : That one James Earp, and Samuel 
Earp, his security, were recognized, in the sum of $1000, to 
appearand answer a charge of felony against the principal, in 
the circuit court of Logan county, on the 6th day of February, 
1875. The recognizance was forfeited, and a judgment was 
rendered by the court thereon, against both recognizors, at the 
following May term. An execution issued thereon to the sheriff 
of Moultrie county, who, on the 20th day of July, 1875, levied 
the same on lots one and two in block eight, of the town of 
Sullivan. Samuel Earp was the owner of the same in 
fee. The certificate of levy was filed, the land advertised, and 
sold on the 9th of September, 1875, to T. T. Beach, State's 
attorney of Logan county. The time for redemption expired, 



230 Elder v. Derby et al. [March 



Statement of the case. 



and the sheriff made a deed for the lots on the loth of Feb- 
ruary, 1877, to Hoblit, the successor of Beach. 

On the 24th day of April, 1877, Hoblit conveyed the lots 
to James G. Chalfant, school superintendent of Logan county. 
On the 9th day of June, 1877, Chalfant sold the lots to 
William Hoggatt, and then and there delivered to him a good 
and sufficient deed of warranty for the same, and took his 
(Hoggatt's) note and mortgage on same for §1000, the unpaid 
portion of the purchase money of said premises. Said mort- 
gage was acknowledged by said Hoggatt on the 14th day of 
July, 1877, and by the wife of said Hoggatt on the 9th day 
of August, 1877, and was filed for record in the recorder's 
office of said Moultrie county, on the 23d day of October, 
1877. The note and mortgage were assigned and delivered 
to Derby by Chalfant, as his successor in office, in December, 
1877. "William Hoggatt is insolvent, has left the State, 
and at the time of leaving he gave possession of the premises 
to Elder. On the 3d of September, 1875, Samuel Earp 
and wife conveyed the premises, by warranty deed, to Wil- 
liam Hoggatt, and the deed was recorded on the 18th day of 
September, 1875, the property having been levied on by the 
sheriff on the 20th day of the previous July. On the 22d 
of April, 1876, Wm. Hoggatt mortgaged this and other prop- 
erty to George W. Hoggatt and William Elder, and the 
mortgage was filed for record on the 11th day of October, 
1876. The condition had been broken and Elder had been 
forced to pay the money to secure which the mortgage was 
given, to-wit: $2161.20 and interest, which had not been 
repaid to him; "that at no time on and after the 9th day of 
June, 1877, and before said 23d day of October, 1877, did 
the said William Elder or the said George W. Hoggatt have 
any notice or knowledge (except what might be implied by 
law) of the existence of said mortgage to said Chalfant, the 
same not having been made a matter of record until the 23d 
day of October, 1877, — or that the whole or any part of the 
purchase money for said premises, was due or unpaid from 



1881.] Elder v. Derby et al. 231 



Briefs of Counsel. 



said Hoggatt ; M that neither Elder nor G. W. Hoggatt made 
any inquiry in reference to the matter; that Chalfant was not 
in possession of the premises, on or after June 9th, until 
the 23d of October, 1877, by himself or otherwise, and never 
was in possession; that George W. Hoggatt has sold his 
interest in the mortgage to Elder. 

The deed from Chalfant to Wm. Hoggatt reserves, in terms, 
no vendor's lien on the premises for the purchase money. It 
is also agreed that the notes and mortgages of the respective 
parties shall be considered in evidence. 

Messrs. A. C. & I. J. Mouser, for the appellant : 

The law does not favor secret liens. Rev. Stat. 1877, ch. 
30, § 30; Brookfield v. Goodrich, 32 111. 363. 

The taking of a note and mortgage to secure the unpaid 
portion of the purchase money was a waiver of any vendor's 
lien. 4 Kent's Com. 153; Conover v. Warren et al. 1 Gilm. 
498; Berger et al. v. Potter et al. 32 111. 72; Boynton v. 
Champlin, 42 id. 64; Moshier v. Meek et al. 80 id. 80. 

And even if not waived, Derby could not be permitted to 
avail himself of it as against the rights of the complainants, 
they being bona fide mortgagees of Hoggatt without notice of 
the existence of any lien. 4 Kent's Com. 154 ; McLaurie et al. 
v. Thomas, 39 111. 294; Moshier v. Meek et al 80 id. 81. 

Having taken a mortgage, the defendant Derby can not 
now be heard to assert his right to a vendor's lien. He must 
stand or fall upon his mortgage. 

If complainants' title under their mortgage was revived by 
the revesting of the title in Hoggatt by the deed from Chal- 
fant, of which there can be no doubt (2 Parsons on Contracts, 
790, and R. S. 1877, ch. 30, § 7), their rights were then just 
the same as the rights of any new mortgagee would have been, 
and Avere perfect unless there then existed a new lien. 

Mr. T. L. McGrath, for the appellees: 
He who deals with public lands must exercise care. He 
must know that every requirement of the law has been ob- 






232 Elder v. Derby et al. [March 



Opinion of the Court. 



served in giving him his title. See Powell v. Kettelle, 1 Gilm. 
491; Cook v. Crabby id. 537; Trustees of Schools v. Wright, 
11 111. 603. 

Mr. Justice Walker delivered the opinion of the Court: 

Samuel Earp sold and conveyed the premises in contro- 
versy, to ¥m. Hoggatt, on the 3d day of September, 1875, 
after the levy of the execution from the Logan circuit court, 
in favor of the school superintendent and against Earp. 
Afterwards, on the 22d of April, 1876, Win. Hoggatt mort- 
gaged the same premises to Elder and G. W. Hoggatt, and 
this is the mortgage under which appellant claims a prior 
lien. Neither Earp, Elder, G. W. nor Wm. Hoggatt redeemed 
from the sheriff's sale, and when the time for redemption 
expired, all of their claims were cut off and extinguished, as 
the lien of the levy and the filing of the certificate of levy 
were prior to the sale to Wm. Hoggatt, and his mortgage to 
Elder and G. W. Hoggatt, and was a superior lien to the 
others, and by the sale and a want of redemption, all these 
intermediate liens and conveyances were wiped out and 
extinguished. 

After the time for redemption had expired, appellant had 
no claim to a lien on the land. His mortgage was extin- 
guished, and the grantee in the sheriff's deed, or the school 
superintendent, holds an absolute title against Earp, Wm. 
Hoggatt, Elder and G. W. Hoggatt. If, then, appellant has 
a superior lien, it is by virtue of the covenants in his mort- 
gage and the omission of some duty by the superintendent 
of schools. Appellant's mortgage is in the statutory form, 
which is declared to be equivalent to all of the covenants 
for title. It then follows that any title that William Hog- 
gatt subsequently acquired, inured to the benefit of appel- 
lant, in the same condition Hoggatt received it, and revived 
appellant's mortgage on such title. 

Then what title accrued to appellant by the purchase 
by Wm. Hoggatt of the superintendent of schools? Ap- 



1881.] Elder v. Derby et al. 233 

Opinion of the Court. 

pellee does not claim that his mortgage was revived sub- 
ject to a lien on the property for the balance of the pur- 
chase money. But appellant claims, that because the mort- 
gage was not executed and delivered at the time the deed was 
executed by the superintendent of schools, his mortgage 
was thereby let in as a superior lien; that the school super- 
intendent failed to take a mortgage for a considerable time 
after he executed and delivered the deed to Wm. Hoggatt, 
thereby reviving his mortgage. 

Then, is appellant's mortgage let in as a superior lien by 
the superintendent of schools failing to record his mortgage 
for more than three months after it was executed? 

The seizin of Hoggatt was not complete, because his 
delivery of the mortgage was at precisely the same time that 
he received the deed from the school superintendent. He 
was not, therefore, in equity seized of the title in such a 
manner that his title could inure to appellant under the'cov- 
enants in his mortgage. The same transaction which invest- 
ed him with title, divested it and restored it to his grantor. 
Neither grantor nor grantee intended to vest the title free 
from incumbrance in the grantee. Nor will equity hold 
that it was. Appellant's mortgage was no doubt revived, but 
subject to the mortgage for the purchase money. 

The Recording act provides that all deeds, mortgages, etc., 
" which are authorized to be recorded, shall take effect and 
be in force from and after the time of filing the same for 
record, and not before, as to all creditors and subsequent 
purchasers without notice, and all such deeds and title papers 
shall be adjudged void as to all such creditors and subse- 
quent purchasers, without notice, until the same shall be so 
recorded." 

It is not claimed that appellant is a subsequent purchaser, 
but it is admitted that he is a prior purchaser by mortgage, his 
mortgage bearing date more than a year before his mortgagor 
purchased the title he now seeks to subject to the satisfaction 
of his debt. 



234 Elder v. Derby et al. [March 



Opinion of the Court. 



The claim of the school superintendent is for purchase 
money for this land, whilst that of appellee is for money 
paid as surety for his mortgagor, secured by a mortgage on a 
title to this property, which failed, and left him without 
security until his mortgagor purchased on credit the title to 
this property. 

Again, if the recording laws are held operative in such a 
case as this, by what means could the owner sell, and secure 
the purchase money by a mortgage, unless it was executed 
and recorded before the conveyance was made to the pur- 
chaser? Otherwise there must be a space of time between the 
execution of the conveyance and the recording of the 
mortgage, and no matter how short the period, the doctrine 
contended for would let in a prior mortgage that was not a 
lien on the title thus sold and conveyed. Such a construc- 
tion of the recording laws would render the sale of lands on 
time, with a mortgage executed back to the vendor, impracti- 
cable in many cases. 

In such a case as this it would virtually be to satisfy ap- 
pellant's mortgage by selling the land belonging to the school 
fund, and to which the mortgagor did not have title. It is 
true that the superintendent of schools might have given a 
bond for a conveyance and thus have avoided all question as 
to priority of lien, but in equity should not this be con- 
sidered as the same in substance? The vendor did not intend 
to release the land from a lien for the purchase money, and 
supposed by taking the mortgage he had effectually secured 
the lien, and in equity we think he did, and that it should be 
protected. The decree of the court below must be affirmed. 

Decree affirmed. 



1881.] Magill et al. v. Brown et al. 235 

Syllabus. Brief for the Appellants. 



H. Magill et al. 
v, 
John B. Brown et al. 

Filed at Springfield March 21, 1881. 

1. Bill of exceptions — filing in time, without signature of judge, is not suffi- 
cient. A draft of the evidence, etc., filed in the clerk's office within the time 
limited for the filing of a bill of exceptions, but without the signature of the 
judge who tried the case, is no bill of exceptions, and when not presented to 
and signed by the judge until after the expiration of the time allowed for filing 
the same, and being then filed as of the date of signing, it will be properly 
stricken from the record in the appellate court. 

2. Same — when may be filed after time limited. If a party presents his bill of 
exceptions to the judge trying the case, for his signature, within the time pre- 
scribed for filing the same, he having done all that he can, will not be prejudiced 
by the non-action or refusal of the judge to sign it until after the date fixed 
has expired. 

3. Same — necessity therefor — presumption. Every reasonable presumption 
will be indulged in support of the action of a court of general jurisdiction. 
Exceptions to the decisions of courts at the trial can only be saved for review 
in an appellate court by bill of exceptions. In the absence of a bill of excep- 
tions it will be presumed that the evidence was sufficient to warrant the action 
of the court in respect thereto. 

Appeal from the Appellate Court for the Third District; — 
heard in that court on appeal from the Circuit Court of De- 
Witt county; the Hon. Lyman Lacey, Judge, presiding. 

Messrs. Moore & Warner, for the appellants ; 

The bill of exceptions was prepared, filed and presented to 
one of the parties within the time limited by the court — and 
afterwards considered by the court, and certified to be cor- 
rect, — signed and sealed. This made the bill a good one, and 
perfected the appeal. This made the bill a part of the record, 
and preserved the exceptions that were taken at the times 
shown by it. If it was filed in time, and afterwards signed 
and sealed by the court, it is immaterial when it was signed. 
French v. Edwards et al. 13 Wallace, 506 ; Dredge et al. v. 



236 Ma gill et al. v. Brown et al, [March 

Brief for the Appellees. 

Forsyth, 2 Black (U. S.) 567; Stanton v. Embree, 3 Otto, 555; 
United States v Brett ing, 20 Howard, 252 ; Village of Hyde 
Park v. Dunham, 85 111. 569; Wilder et al. v. House, 40 id. 
92 ; Sutherland v. Rose, 47 Barbour, 149 ; Underwood v. Hos- 
sack, 40 111. 98; Roosevelt v. Fulton, 7 Cowen, 107. 

This was a trial by the court without a jury, and the judge 
having signed and sealed the bill of exceptions it was a part 
of the record, and should not have been stricken from it. 
Sees. 60, 61, chap. 110, Eev. Stat. 1874. 

The judge of the circuit court, after signing and sealing 
the bill, directed the clerk to erase and change his file mark, 
a matter that was not within the scope of his legal power. 
Goodrich v. Cook, 81 111. 41. 

Bat if the bill was filed or made, in fact, under circum- 
stances not authorized by law, motion should be made in the 
circuit court to strike it out of the record; and that not hav- 
ing been done, the Appellate Court could not legally do 
otherwise than consider it a part of the record. Hyde Park 
v. Dunham, 85 111. 571 ; Wilder et al. v. House, 40 id. 92. 

Messrs. McConnell, Raymond & Rogers, for the appel- 
lees Kinsman and others : 

The bill of exceptions was properly stricken out. It should 
have been presented to the judge within the twenty-one days. 
Merely filing an ex parte statement with the clerk within the 
time, in vacation, avails nothing. Underwood v. Hossack, 
40 111. 98; Burst v. Wayne, 13 id. 664; Hance v. Miller, 21 
id. 636. 

The judge, in signing this bill of exceptions, certifies ex- 
pressly that it was not submitted to him in time, and that it 
was filed, in the first instance, improperly. He directed the 
clerk to change the original filemark, so that it should not 
appear that the bill had been signed by the judge before the 
original and unauthorized filing. It, therefore, "affirmatively 
appears, from the record," that the bill of exceptions was not 
signed and sealed within the proper time. Otherwise, Hyde 



1881.] Magill et al. v. Brown et al 237 

Brief for the Appellees. Opinion of the Court. 

Park v. Dunham, 85 111. 57, and Wilder et al. v. House, 40 
id. 92. 

Without the bill of exceptions, it does not appear that any 
of the claimants were non-residenfes. 

An affidavit, in support of a motion for security for costs, 
must be saved by bill of exceptions. Lucas v. Farrlngton, 
21 111. 34. 

So, also, a motion to dismiss for want of bond, etc. Doug- 
las v. Parker, 43 111. 146. 

Mr. Henry Crawford, for the appellees: 

No objection can be allowed on appeal not specifically 
made in the trial court. An exception should have been 
taken to the ruling on the motion for a new trial and the 
evidence preserved in a bill of exceptions. Reichwald v. 
Gaylord, 73 111. 502; Nason v. Letz, id. 371. 

In the absence of proof, the presumption must prevail that 
the judgment was warranted by the facts before the court. 
Choate v. Hathaway, 73 111. 518. 

Mr. Justice Scott delivered the opinion of the Court: 

Claimants were creditors of Leverett Brown, deceased, and 
of whose estate defendants are the executors, and were so 
nominated in his will. Proceedings were had in the county 
court of De Witt county, by which the amounts due claimants 
were allowed against the estate of deceased as claims of the 
7th class. It appears other parties, said to be non-residents 
of this State, filed a number of claims against the estate of 
deceased, but without giving security for costs, as counsel 
insist non-resident claimants are required by statute to do. 
Afterwards the county judge, being of opinion he was inter- 
ested in the result of the proceedings in said estate then 
pending before him, ordered all matters concerning the estate 
to be certified to the circuit court of the county, which was done. 
On the 31st day of March, 1879, the claimants prosecuting 
this appeal filed an affidavit in the circuit court, stating the 



238 Magill et ah v. Brown et al. [March 

Opinion of the Court. 

non-residence of the other claimants, and moved to dismiss 
each of their claims for want of security for costs, but the 
court overruled the motion. Their claims were afterwards 
allowed against the estate as of the 7th class. 

In answer to a citation served upon them, the executors 
made a report of funds in their hands belonging to the estate, 
and after it was amended the report was approved by the cir- 
cuit court where the estate was then being administered. 
Appellants asked the court to order the executors to pay 
their claims, which had been previously allowed in the county 
court, out of assets of the estate then in their hands, before 
making any payments on the claims of other creditors of the 
estate allowed at that term of the circuit court, but the 
motion was overruled by the court. An appeal was then 
prayed to the Appellate Court, from the orders of the cir- 
cuit court, approving the executors' report and overruling 
these claimants' motion to have their claims paid to the ex- 
clusion of other creditors of the estate, which was allowed, on 
condition claimants would give bond with sureties — the 
"bond and bill of exceptions, to be filed in twenty-one days. 1 ' 

The appeal bond required to be given to perfect the appeal 
was given within the time prescribed by the order of 
court, but no bill of exceptions signed by the judge who 
tried the cause on the circuit, was filed within that time. 
Counsel for the appealing claimants prepared a bill of excep- 
tions, and caused it to be filed in the office of the clerk of 
the circuit court, but it was not presented to the judge before 
whom the cause was heard, for his signature, until some days 
thereafter. 

Afterwards, when the judge did sign the bill of exceptions, 
he directed the clerk to erase the former file mark, and file 
the same as of October 7, 1879, which was the day it was 
presented to him for his signature, and on which he signed 
it. On the hearing of the appeal in the Appellate Court, on 
motion of counsel for the executors, the bill of exceptions 
incorporated in the transcript was stricken out as constitu- 



1881.] Magill et al. v. Bkown et al. 239 

Opinion of the Court. 

ting no part of the record. That decision, among others, is 
assigned for error in this court. 

It is conceded the time fixed by the order of the court, in 
which the bill of exceptions could be properly filed, expired 
on the 2d day of October, 1879. No bill of exceptions had 
then been filed, unless the draft prepared by counsel for ap- 
pealing claimants, which had not then received the signature 
of the judge who tried the cause, could be treated as a bill of 
exceptions. This can not be done. It was no bill of excep- 
tions until it had the approval and signature of the judge. 
It was not even presented to the judge for his examination 
until October 7th, which was then too late for any action to be 
taken in regard to it. Had the bill of exceptions in this 
case appeared to have been signed by the judge and filed 
within the time prescribed by the order of the court, the case 
would have come under the rule declared in Underwood v. 
Hossack, 40 111. 98, and Hyde Fark v. Dunham, 85 id. 571. 
It does not so appear. On the contrary it affirmatively 
appears the bill of exceptions was neither presented to nor 
signed by the judge, until after the expiration of the period 
fixed for filing the same. The case is within and must be 
controlled by Hanoe v. Miller, 21 111. 636, and Burst v. 
Wayne, 13 id. 664. 

Counsel could have complied with the t>rder of court by 
presenting his bill of exceptions to the judge within the time 
prescribed. That was not done. This court has frequently 
held that where a party presents his bill of exceptions to the 
judge within the time prescribed for filing it, he has complied 
with the rule so far as it is in his power to do so, and he is 
not to be prejudiced by the non-action or refusal of the judge 
to sign it until after the date fixed has expired. 

It is insisted the judge had no rightful authority, when he 
signed the bill of exceptions, to direct the clerk, as he did, 
to erase the former file mark and cause it to be re-filed as of 
the day it was in fact presented to and signed by him. He 
had the clear right to direct the clerk to re-file the bill of 



240 Kirby, Exr. v. Wilson et ah [March 



Syllabus. 



exceptions as of the correct date, and it is not a matter of 
the slightest consequence whether the former file mark was 
erased or not. 

Under the facts appearing, the bill of exceptions found in 
the transcript was no part of the record, and was properly 
stricken out by the Appellate Court. 

Now that the bill of exceptions has been stricken out of 
the record, nothing remains to indicate or show any errone- 
ous action or decision on matters submitted to the court. 
Every reasonable presumption will be indulged in favor of 
the action of a court of general jurisdiction. Exceptions to 
the decisions of courts at the trial can only be saved for 
review in an appellate court by bill of exceptions taken at 
the trial. That was not done in this case. This court is left 
free to indulge the presumption, the action of the court was 
warranted by the evidence heard on the trial. What that 
evidence was, of course this court can not know without a 
bill of exceptions. 

The judgment of the Appellate Court will be affirmed. 

Judgment affirmed. 



Edward P. Kirby, Exr., etc. 

v. 

George Wilson et al. 

Filed at Springfield March 21, 1881. 

1. Instruction — as assuming only one question offactin the case. An instruc- 
tion, telling the jury that it is a question of fact to be by them determined, 
whether any part, and if so, how much, of^the proceeds of the sale of cattle 
belonging to another, the claimant, came into the hands of the executor of the 
estate of the person making the sale, after the death of the latter, in a suit 
against the executor to recover such proceeds, is not to be understood as 
declaring that to be the only question of fact submitted to the jury for con- 
sideration. 



1881.] Kirby, Exr. v. Wilson et al. 241 

Brief for the Appellant. 

2. Same — copying from former opinion on second trial. "Where the evidence 
on the second trial of a case is substantially the same as on the first trial, ex- 
cept being somewhat fuller on some points, the difference not being such as to 
change the rule of law governing the case, there will be no error in copy- 
ing an instruction largely from the opinion of this court in passing upon the 
merits of the first trial. 

3. Same — when not acted on by the jury, no error sufficient to reverse. An in- 
struction that the jury might find for the plaintiff the whole amount claimed, 
in a suit to recover the proceeds of the sale of a lot of cattle, if they should 
find, from the evidence, that the deceased at a certain time sold a number 
of the plaintiff's cattle in a particular place named, and retained the money on 
his person until his death, etc., when the jury give the plaintiff no part of the 
proceeds of the sale at that place, but only of the proceeds of the sale at an- 
other place, even if erroneous, affords no ground of reversal, as the court can 
see it did not mislead the jury. 

4. Administration — preference of claim. Where a person sells the cattle 
of another, as his agent, under a contract, and receives and retains the pur- 
chase money until his death, it becomes the money of the owner of the cattle, 
as the substitute or representative of the cattle, and the fact that the widow 
of the person so selling, during his illness, or after his death, takes such funds 
and deposits the same in bank in her own name, and afterwards gives her 
check for the same to her husband's executor, will not destroy the identity of 
the fund, and make it subject to the general creditors of the testater, but the 
owner of the cattle so sold will have a preference over the other general cred- 
itors of the estate. In such case it is not necessary that the identical bills 
received by the testator should have come into the hands of his executor. 

5. Error — when no ground of reversal. On the trial of a claim against an 
estate, in which a preference was claimed over the general creditors, the 
court admitted testimony showing the insolvency of the estate. It was held, 
that while such evidence had no legitimate bearing upon the case, and was 
improper, its admission formed no ground for a reversal of the judgment, 
as it could do the plaintiff no harm. 

Appeal from the Appellate Court for the Third Dis- 
trict; — heard in that court on appeal from the Circuit Court 
of Morgan county ; the Hon. Cyrus Epler, Judge, presid- 
ing. 

Messrs. Morrison, Whitlock & Lippincott, for the 
appellant: 

While this court will not examine the evidence to see if 
the verdict is supported by it, the affirmance of the judgment 

16—98 Ilb. 



242 Kirby, Exr. v. Wilson et aL [March 

Brief for the Appellee. Opinion of the Court. 

below by the Appellate Court, being a finding of the facts, 
(Brownell v. Welch, 91 111. 523,) yet this court will look at 
the evidence to see if the trial court ruled properly on the 
instructions. 0., 0. & F. R. R. Co. v. McMath, 91 111. 104; 
Wabash R. R. Co v. Hanks, id. 406. 

That the money in the hands of Alexander, at the time of 
his death, was not held in trust for the plaintiffs and should 
not have been allowed as a sixth class claim, we cite Wilson 
v. Kirby, 88 111. 566; Wier v. Gand, id. 450; Silsly et at. v. 
McCoon, 3 N. Y. 379 ; In re Hosie, 7 N. B. R. 601; Ex parte 
Sayers, 5 Ves. Jr. 169. 

As to whether the identity of the fund was lost by Mrs. 
Alexander depositing the money in bank, and checking the 
same out to the executor, see Wilson v. Kirby, 88 111. 566; 
Oliver v. Pyatt, 3 How. 401 ; West of England and South 
Wales District Bank, 40 Law Times (N. S.) 712; Whitcomb 
V. Jacobs, 1 Rolle, 160; Ryall v. Rolle, 1 Atkyns, 172; Ex 
parte Dumas, id. 234; Scott v. Sumon, Willis, 403; Taylor v. 
Plumer, 3 M. & Sel. 562; Cook v. Tullis, 18 Wall. 332; Tre- 
cothic v.Austin, 4 Mason, 16; 2 Redf. on Wills, 205, sec. 11; 
Kent v. Murgatroyd, 1 Johns. Ch. 128; Kip v. Rank of New 
York, 10 J. R. 63; Lock v. Kerison, 6 Tenn. 227. 

Mr. William Brown, and Mr. R. D. Russell, for the 
appellee, contended that the money received by Alexan- 
der for the Wilsons' cattle represented the cattle, and 
that the Wilsons might elect to treat the money as their substi- 
tute, and that the identity of the cattle money was not lost. 
Citing in support thereof Oliver et aL v. Piatt, 3 How. 333; 
Silsby v. McCoon, 3 N. Y. 379. 

None of the cases cited by plaintiff in error conflict with 
the case of Wilson v. Kirby, 88 111. 566. 

Mr. Justice Craig delivered the opinion of the Court: 

This case was before us at the January term, 1878, when 
the judgment of the Appellate Court was reversed and the 



1881.] Kirby, Exr. v. Wilson et al. 243 

Opinion of the Court. 

cause remanded. A sufficient statement of the facts to ob- 
tain a proper understanding of the case will be found in the 
opinion of the court then delivered. See Wilson v. Kirby, 
8S 111. 566. 

In conformity with the decision, the cause was remanded 
to the circuit court by the Appellate Court, where a trial 
before a jury resulted in a finding in favor of the Wilsons, 
in the sum of §12,143.88 as a preferred claim against the 
estate of John T. Alexander, deceased. The executor of 
the estate took an appeal to the Appellate Court, where the 
judgment was affirmed, and to reverse that judgment he 
has prosecuted this appeal. 

Whether the finding of the jury was justified by the evi- 
dence, or in conformity to the testimony, is a question 
with which we have no concern. Under the statute, that 
question can not be reviewed here. If, therefore, there was 
no error in the trial of the cause in the circuit court, we must 
affirm the judgment. 

The defendant, however, contends that the circuit court 
erred in giving plaintiff's instructions, Nos. 4, 5J-, 6, 7, 9, 10, 
11, and in refusing instructions Nos. 13, 14 and 15, asked by 
him. 

It is said the fourth instruction assumes that the only 
question of fact in the case is, what amount of the proceeds 
of the Wilson cattle came to the hands of the executor of the 
estate. It is true that the jury were told by the instruction 
that it was a question of fact to be by them determined, 
whether any part, and if so, how much, of the proceeds of 
the Wilson cattle came into the hands of the executor of the 
estate after Alexander's death, but we do not understand that 
the instruction declares that to be the only question of fact 
submitted for their consideration, but if it had so declared no 
injury would have resulted to either party, because that was 
the only real disputed question in the case. There was no 
dispute between the parties in regard to the fact, that at 
Alexander's death, there was found on his person §20,500, 



244 Kirby, Exr. v. Wilson et at. [March 

Opinion of the Court. 

which was deposited in a bank by his widow, and subse- 
quent^, by check, passed over to the executor. This money 
was claimed by the plaintiff on the ground that it was the 
proceeds of the sale of what was known as the Wilson cattle. 
This was claimed by the defendant, and incidentally he claimed 
that the money could not be traced and identified as the 
identical money received by Alexander for the cattle. 

But, after all, the controverted question before the jury 
was as stated in the instruction. We do not understand that 
the instruction withdraws from the jury the question, 
whether the money can be traced, — nor does it ignore the 
question at all. 

The objection made to instruction No. 5J- is, that it was 
copied largely from the opinion rendered in this* case, while 
the evidence on the present trial is totally different from what 
the evidence was on the former trial, and hence the opinion 
can not control. We do not understand that there is any 
substantial difference between the evidence introduced on the 
former trial and the evidence introduced on the last trial, ex- 
cept that the evidence may be somewhat fuller on some 
points in the case than it was in the first trial. There is, 
however, no such difference in the evidence as to change the 
rule of law that should govern the case, and what when the 
case was here before must control now. 

It is contended that, under the sixth instruction, the jury 
might find for plaintiffs the whole amount they claimed, if they 
should find, from the evidence, that Alexander sold, in Chi- 
cago, on July 25 and 27, a number of the Wilson cattle, and 
retained the money in his possession until his death, etc. We 
do not think the jury could have been misled, as supposed, by 
the instruction. Indeed, the verdict shows clearly they were 
not, as they gave plaintiff no part of the proceeds of the sale of 
cattle at Chicago, but confined the verdict to the proceeds of 
cattle sold at Buffalo. 

The other objection made to this, and also to the eighth 



1881.] Kirby, Exr. v. Wilson et al. 245 

Opinion of the Court. 

and ninth instructions, will more properly arise when we 
consider the tenth instruction, which was as follows : 

"The court also instructs for the Wilsons, that whilst it 
is incumbent on claimants to show by a preponderance of 
the proof the identity of the funds alleged to have been re- 
ceived by Kirby, executor, with the proceeds of the Wilson 
cattle, yet the fact, if proven, that Mrs. Alexander took from 
her husband during his illness, or after his death, the funds 
alleged to be the proceeds of such cattle, and deposited the 
same, and then executed her check to the executor, after his 
appointment, such deposit by Mrs. Alexander and the giving 
of a check therefor does not destroy the identity of the fund 
for the purpose of this case." 

It is contended, on behalf of appellant, that the court 
erred in giving this instruction, and in refusing instructions 
13, 14 and 15 asked by him. And this, as we understand 
the argument, is the main ground relied upon to secure a re- 
versal of the judgment. The argument is, that plaintiffs, to 
recover in this case, must prove that Alexander sold the 
Wilson cattle and retained the identical money received from 
the sale of the cattle, separate and unmixed with other funds, 
and that such money, unmixed, passed into the hands of the 
defendant after the death of Alexander; but if the money 
was mixed with other funds by Alexander before he returned 
home, or was commingled with other money by his wife 
after his death, no recovery can be had by the plaintiffs. 
Alexander had on his person when he died $20,500, the 
larger portion of which was obtained by him on the sale of 
the Wilson cattle and as the proceeds of such sale. The 
balance was money received by him for the sale of other 
cattle, in which the Wilsons were not interested. All of this 
money the widow, after Alexander's death, deposited in bank 
in her own name, and after the executor qualified, she gave 
him a check for the amount she had thus received and placed 
in bank. 



246 Kirby, Exr. v. Wilson et al. [March 

Opinion of the Court. 

On these facts, when the case was before us at the former 
term, it was said : " We make exception, however, of the 
portion of the proceeds of the sale of the cattle which was 
in the hands of the decedent at his death, and was paid over 
to the "executor." These proceeds stood in the place of the 
cattle sold, as their substitute or representative, and were the 
property of the Wilsons, as the cattle were under the con- 
tract, and can be traced and identified as their particular 
property, and may be followed into the hands of the execu- 
tor, and they have a preferable claim thereto over general 
creditors. After stating the rule that the county court may 
apply equitable rules on the adjustment and allowance of 
claims against estates, it is then said: "A part of the $20,- 
000 which Alexander brought back with him on his return 
from the East, where he had taken and sold one hundred 
and seventy-seven head of cattle, and which was paid over to 
his executor, is to be taken to be the proceeds of the sale of 
these cattle, amounting to some $10,000 and over, as may be 
inferred from the testimony, and to the extent of such pro- 
ceeds appellants' claim should have been preferred, and 
allowed in the 6th class." 

In the giving of the 10th instruction, and in refusing 
defendant's 13th, 14th and 15th instructions, the circuit 
court adhered to the rule as declared by this court when 
the case was here before. This rule we are now asked 
to change, and we have been referred to a number of cases 
decided in the courts of other States, showing under what 
circumstances the owner may follow and retake property 
of which he has been deprived, where it has been changed 
in form or character by another. But the cases cited we do 
not regard as having any legitimate bearing here. The 
money which Alexander received from the sale of the Wilson 
cattle belonged to the Wilsons; it represented the cattle 
which they owned, and which were converted into the 
money. Before Alexander died the Wilsons were entitled 
to that money, regardless of Alexander's creditors; and so 



1881.] Kikby, Exr. v. Wilson et al. 2-17 

Opinion of the Court.. 

long as he retained the money in his own hands it was the 
property of the Wilsons, and did not belong to him, nor 
could it be successfully reached by his creditors. In what 
way were the rights of the Wilsons changed by the deatli of 
Alexander with this money in his hands? Did the title to 
the money change, and did it then become the property of 
general creditors? We think not. Nor do we understand 
that the fact that the widow of the deceased took the money 
and placed it in bank, and subsequently turned it over to the 
executor, affected the rights of the Wilsons. The widow, 
after Alexander's death, could do nothing, nor could the 
executor, to deprive the Wilsons of any right they had in 
and to this money in the hands of Alexander when he died. 
At his death, so far as this money was concerned, the rights 
of the Wilsons became fixed. If Alexander in his lifetime 
had disposed of the money, the case would have been differ- 
ent; but he did not. He retained this money in his hands up 
to the time of his death, and as the executor took it in his 
official capacity as executor, and thus appropriated it, the 
Wilsons are justly and equitably entitled to a preference. 
Three cross-errors were assigned by appellees : First, the 
court erred in giving appellant's instructions 1, 2,3 and 8; 
second, the court erred in admitting the testimony of Edward P. 
Kirby as to the financial condition of Alexander's estate; third, 
in refusing to allow plaintiffs' claim in the 6th class to the ex- 
tent of §20,500, The instructions complained of required the 
jury to find, from the evidence, that the money which came 
into the hands of the executor was the identical funds which 
Alexander received from the sale of the cattle, otherwise 
plaintiffs could not recover. If these instructions conveyed 
to the jury the idea that no recovery could be had unless the 
identical bills received by Alexander for the cattle came into 
the hands of the executor, then they were erroneous. If, on 
the other hand, the true meaning of the instructions was that 
the proceeds of the cattle which came into the executor's 
hands were the proceeds of the sale made by Alexander, they 



248 Board of Trustees v. Be ale et ah [March 



Syllabus. 



could not mislead. We are satisfied the jury put this latter 
construction on the instructions, otherwise they could not 
have found for the plaintiffs in any amount. This being the 
case, we do not think the jury were misled by the instructions, 
although in the form they were drawn a different construc- 
tion might have been placed upon them. 

As to the admission of the evidence of the executor, to the 
effect that Alexander's estate was insolvent, while we fail to 
see any legitimate bearing it had on the case, yet it could do 
plaintiffs no harm, and for this reason, although the testimony 
was incompetent, its admission forms no ground for a reversal 
of the judgment. 

In regard to the third cross-error, the amount of plaintiffs' 
claim was a controverted question of fact for the jury, to be 
determined from all the evidence, and the finding of the jury 
can not, under the statute, be reviewed here. 

The judgment of the Appellate Court will be affirmed. 

Judgment affirmed. 



The Board of Trustees of Town 24, E. 7 East 

v. 
Carrie Be ale et al. 

Filed at Springfield March 21, 1881. 

1. Homestead — must be released in mortgage to school fund. A mortgage 
given upon a party's homestead to secure money borrowed from the school 
fund, which fails to release or waive the homestead right, is not effective and 
obligatory as against such right, although in the form prescribed by the statute 
in force at the time of its execution, and no forced sale can be had under the 
same. 

2. The Homestead law, by making certain exceptions to its operation and 
effect, clearly shows that it was intended to apply to alt cases not included 
within those exceptions. The School law relating to real estate mortgages, 
and the Homestead law, were intended to apply to a distinct and independent 
subject matter. 



1881.] Boa ed of Thustees v. Be ale et al. 249 

Statement of the case. Brief for the Appellants. 

Appeal from the Circuit Court of McLean county; the 
Hon. Owen T. Beeves, Judge, presiding. 

This was a bill filed in the McLean circuit court by Carrie 
Beale, widow of Abner Beale, and by Charles A. Beale and 
Lilly Beale, minor children of Abner Beale, by their next 
friend, to set aside a sale made under a decree obtained on the 
foreclosure of a school mortgage executed by Abner Beale 
and wife to the appellants, given to secure a loan of $400 of 
school funds, on the ground that there was not a proper 
release of the homestead in the mortgage. 

Abner Beale died June 20, 1872, and at the May term, 
1877, the school board filed their bill to foreclose the mort- 
gage, and sold the premises on August 9, 1877, under a decree 
of the McLean circuit court. 

The appellants demurred to the bill to set aside the sale, on 
the ground of a want of equity. The court overruled the 
demurrer, and appellants, abiding by their denlurrer, bring 
the case here by appeal. 

Mr. A. Sample, for the appellants: 

The mortgage was executed Oct. 14, 1871, in form exactly 
like that prescribed by the statute then in force. It also con- 
tained the following clause: "If said estate be sold to pay 
said debt, or any part thereof, I will deliver immediate pos- 
session of said premises." 

The Homestead act was passed in 1851, and amended in 
1857, so that the wife was also required to sign the waiver. 
The school mortgage law was amended at the same session, 
so that both acts were under consideration by the legislature 
at the same time. 

It is evident that the legislature considered that the form 
of mortgage as amended in 1857 was sufficient to protect any 
loan of school money made, and that the provision that the 
possession should be surrendered on sale being made, etc., 
was a sufficient release of the homestead in such case, the 



250 Board of Trustees v. Beale et al. [March 

Brief for the Appellees. Opinion of the Court. 

homestead right at that time being a mere right of possession, 
and not an estate. Kitchell v. Burgwin, 21 111. 35; McDonald 
v. Crandall, 43 id. 232; Finley v. MoConnell, 63 id. 263. 

Mr. H. G. Reeves, for the appellees: 

There is not a word in the body of the mortgage about the 
homestead, while the statute then in force imperatively re- 
quired a release of homestead, subscribed by the householder 
and his wife. This court has construed this stafute in the 
following cases: Kitchell v. Bwrgioin, 21 111. 40; Boyd v. 
Cudderback, 31 id. 113; Booker v. Anderson el ux. 35 id. 
66; Vanzant v. Vanzant, 23 id. 536; Wing v. Cropper et al. 
35 id. 256; Bedfern v. Bedfern, 38 id. 509; Miller v. Markle, 
27 id. 402; Patterson v. King, 29 id. 514; Pardee v. Lindley, 
31 id. 174; White v. Clark, 36 id. 235; Walter v. People, 
18 id. 194; Green v. Marks et al. 25 id. 222; Deere v. Chap- 
man, 25 id. 610; Best et al. v. Allen, 30 id. 30; Ives v. Mills, 
37 id. 73; Conner v. Nichols, 31 id. 148; Thornton v. Boy- 
den, id. 200; Marshall v. Baker, 35 id. 106. 

The school fund is entitled to no greater protection than 
the rights of a wife and her fatherless children. Warner v. 
Crosby et al 89 111. 327, Best v. Gholson, id. 468; Campbell 
v. Adair, 45 Miss. 182; Charless v. Lamberson, 1 Iowa, 439. 

Mr. Justice Scholfield delivered the opinion of the 
Court: 

A single question claims our attention in the present case. 

On the 14th day of October, 1871, Abner Beale executed 
a mortgage to the board of trustees of township 24, range 7, 
in Ford county, on certain real estate, to secure the payment 
of a sum of money which he had borrowed, belonging to the 
school fund. At the date of the execution of the mortgage, 
Beale was a householder, having a family and residing with 
the same upon the real estate described in the mortgage; and 
such real estate properly constituted his homestead. 



1881.] Board of Trustees v. Beale et at. 251 



Opinion of the Court. 



There was no release or waiver of the homestead exemp- 
tion in the mortgage; and the question is, did the mort- 
gage, notwithstanding this omission, become effective and 
obligatory as against the claim of homestead? 

The mortgage follows the form prescribed for such instru- 
ments by the statute in force when it was executed, and inas- 
much as that statute had been revised since the enactment of 
the Homestead law, it is contended, both laws being before the 
legislature at the same time, we must assume it was intended 
such mortgages were excepted from the provisions of the Home- 
stead act, and embraced the homestead when executed in the 
form prescribed. Why this should be presumed, we are not 
informed. Both acts being before the legislature at the same 
time, it Avould seem we should presume that the language of 
both was intended to express the law, unless there is an irre- 
concilable repugnancy between that employed in the two acts. 
We are not able to perceive such repugnancy. 

The precise form of this mortgage is first found in the "act 
to establish and maintain common schools," in force April 
13, 1849. (See Pub. Laws of 1849, p. 167.) Subsequently, 
in the several revisions, it was simply re-incorporated, with- 
out any change of phraseology, until in the revision of April 
1, 1872. The first act in relation to the exemption of home- 
steads was not passed until the 11th of February, 1851, — almost 
two years after the adoption of this form of mortgage — and 
that act very significantly contained these, and no other, excep- 
tions, namely: "sale for non-payment of taxes or assessments, 
or for a debt or liability incurred for the purchase or improve- 
ment of the homestead. " The act professes to cover every 
other instance of forced sale, and necessarily that under mort- 
gage given to secure payment of school money borrowed, as 
well as others. 

Had the question been, whether the form given by the act 
of April 13, 1849, would have been sufficient, as regarded the 
right of homestead, in a mortgage executed after the adoption 
of the Homestead act of the 11th of February, 1851, and be- 



252 Board of Trustees v. Beale et al. [March 

Opinion of the Court. 

fore the subsequent revision of the School law, can there be 
any doubt that, upon the most familiar principles of con- 
struction, it must have been held insufficient? We think not. 
In that event, even if there had been held to be repugnancy 
between the two acts, the last in point of time of enactment 
must have controlled. Did the legislature manifest an inten- 
tion that a different rule of construction should obtain by 
simply neglecting, subsequently, to change the phraseology of 
the act of the 13th of April, 1849? We think not. The 
Homestead law, by making certain exceptions, clearly showed 
that it was to apply to all cases not included within those 
exceptions. In the revisions of the School law prior to that 
of April 1, 1872, there is no reference to the Homestead 
law, and we can not, therefore, assume that it was in the mind 
of the legislature to qualify or limit or amend it in any 
respect whatever, but we should rather assume that the 
legislature intended each law to apply to a distinct and inde- 
pendent subject matter — the School law to mortgages for bor- 
rowed school fund, in general — the Homestead law to cases 
affecting the homestead right, — and so, when the mortgage 
was to be on the homestead, a case arose not within the con- 
templation of the School law only, which made no provis- 
sion in that regard, but which was in the contemplation of 
the Homestead act. 

In Humeet al. v. Gossett, 43 111. 297, an analogous question 
was before the court. There, the law in regard to the town 
collector's bond provided that such bond should be a lien 
upon all the real estate of the collector, within the county, at 
the time of the filing of the bond, but it was held that the 
lien did not exist against the homestead right, and it was 
said: "In our view of this legislation" (i. e. homestead leg- 
islation), "the homestead right is protected against all liens 
and sales, and against all modes of conveyance, whether by 
deed absolute or by mortgage, unless it shall be released or 
disposed of in the mode prescribed in the act." 



1881.] Board of Trustees v. Beale et al. 253 



Opinion of the Court. 



But appellants' counsel insists that unless it shall be con- 
strued that the present mortgage affects the homestead right, 
the clause providing that the mortgagor will surrender pos- 
session, is utterly meaningless. This, we think, is a misap- 
prehension. That clause will be obligatory in all cases 
where there is no claim of homestead, — for it is obvious that 
possession and homestead are not synonymous, — and in all 
cases where the right to claim homestead is properly waived 
or released. 

The mortgage here was clearly insufficient to affect the 
right of homestead. 

Under the Homestead act of the 11th of February, 1851, as 
amended by the act of the 17th .of February, 1857, it was 
held, in Kitchell v. Burgwin etux. 21 111. 40, to' waive or re- 
lease the homestead right, a formal release or waiver of the 
statute must be executed; and that it must appear that the 
privileges and advantages of the act were in the contempla- 
tion of the parties executing the deed, and that they were 
expressly released or waived, in the mode pointed out in the 
statute. 

And, in Vanzant v. Vanzant, 23 111. 541, it was said: 
"The insertion in the deed of conveyance of the special or gen- 
eral covenants usually inserted, without express reference in 
the deed to this act, can not operate as a release or waiver of 
it. There must be a writing expressly manifesting the inten- 
tion to waive or release, and that writing must be signed by 
the party releasing." * ■ * * 

Numerous subsequent cases recognize the same doctrine. 

The decree below was right, and it must be affirmed. 

Decree affirmed. 



254 Hamilton et al. v. Hamilton et al. [March 

Syllabus. Brief for the Plaintiff in Error. 



Mary W. Hamilton et al. 

v. 
James A. Hamilton et al. 

Filed at Springfield 3Iarch 21, 1SS1. 

Will — -power of executors to sell and convey real estate. A testator, "by 
the sixth clause of his will, directed his property to be equally di- 
vided between his children and the children of a deceased child or children, 
as a class, and he so devised it, and in the ninth clause empowered and di- 
rected his executors to make the division, and allot and distribute the several 
equal parts by writing, under their hands and seals, to the persons entitled 
thereto, and in the tenth clause declared that, "for the purpose of carrying 
out any of the provisions of this my will, I give to my executors hereinafter 
appointed, full power and authority to convey in fee simple absolute, or other- 
wise, in their discretion, all or any portion of my real estate, and to execute 
and deliver all proper deeds and instruments in writing therefor : " Held, 
that by the tenth clause the executors were fully empowered to sell and con- 
vey any of the testator's real estate, as they might deem advantageous to the 
estate and to a proper division, — the power to convey by all proper deeds, 
etc., implying a power to sell. 

Writ of Error to the Appellate Court for the Second 
District; — heard in that court on error to the Circuit Court 
of Cook county; the Hon. William H. Barnum, Judge, 
presiding. 

Mr. John S. Wirt, for the plaintiffs in error, after 
stating the general rule of interpretation of wills, con- 
tended that the tenth clause gave the executors the power 
to sell and convey any of the testator's real estate, and that 
it was not controlled by the ninth clause, so that the execu- 
tors could only convey for the purpose of carrying out the 
provisions of section 9, that is to the " issue collectively " of 
deceased children of the testator. 

Anv other construction would ignore the fact that in the 
tenth clause the class of persons to whom conveyances may 
be made is unlimited, and that the power to convey is not 
granted for the purposes of the ninth clause merely, but for 



1881.] Hamilton et al. v. Hamilton et al. 255 

Brief for the Defendant in Error. Opinion of the Court. 

the purpose of the carrying " out of the provisions" of the 
will. 

No argument is made as to the jurisdiction of the court to 
entertain such a bill for construction as incident to the ad- 
ministration of a trust, as there seems to be no reasonable 
doubt on that point. 2 Story's Eq. Jur. § 1065; 1 Redfield 
on Wills, p. 492. 

Messrs. Judd & Whitehouse, for the defendants in error: 
It seems plain that the paramount idea and intention of 
the testator in the sixth item of his will, and in the auxiliary 
provisions, was to effectuate a division of his estate, both real 
and personal, not otherwise disposed of. The authority 
granted to the executors to "convey in fee simple absolute, 
or otherwise, in their discretion, all or any portion" of the 
real estate as specified in the tenth item of the will, does not 
import authority to sell and convey any portion of the real 
estate; and the absence of the word "sell" implies that 
"convey" is used only as a word of limitation in connection 
with the division of the real estate in kind required by the 
sixth item of the will, in order to further assure the title in 
pursuance of the division when made. 

The words "in their discretion" imply that the necessity 
or expediency of such sale, in order to carry out any of the 
provisions of the will, is a matter reposed wholly in the 
judgment of the executors. 

Mr. Justice Walker delivered the opinion of the Court: 

This case involves the construction of the will of Thomas 
Suffern. And the question is, whether the persons named in 
the will as executors and trustees have power, under its 
provisions, to sell real estate which belonged to testator, and 
convey title thereto. On the one side it is contended that 
the will confers ample power, but it is denied on the other. 
If the power claimed exists, it is derived from the sixth, 
ninth and tenth clauses of the will. This is the sixth : 



256 Hamilton et al. v. Hamilton et al. [March 

Opinion of the Court. 

" Sixth — All the residue of my estate, real and personal, 
divided into as many equal portions as I shall leave children 
and issue collectively of any deceased child, me surviving, I 
give and devise as follows : one of said equal portions I give 
and devise to the issue collectively of each of my children 
who shall have died during my life, leaving issue, to have 
and to hold to such issue in fee simple absolute; one other 
of said equal portions I give and devise to the persons here- 
inafter appointed as trustees for each of my children living 
at the time of my death, to have and to hold such portion of 
each child in severalty in trust during the life of such child, 
and to receive the rents, issues and profits thereof during 
such life, and to apply the same to the use of such child dur- 
ing her life, and after the death of each of my children, I 
give the portion so held in trust for her to her heirs at law, 
subject, however, to the power to such child to devise, here- 
inafter contained.' 7 

The property spoken of in this clause is what should re- 
main after specific devises and provisions made for his wife, 
but she having died before him, such devises and provisions 
are not involved in this suit. The ninth clause is this: 

" Ninth — I empower and direct my executors, as soon after 
my decease as maybe done, to make division of all my estate, 
provided for in the sixth item of this my will, into as many 
equal parts as I shall leave children and issue of deceased 
children, me surviving (one part, however, for the issue col- 
lectively of each deceased child as representing their deceased 
parent), and having made such division, I direct my said ex- 
ecutors to allot and distribute the several equal parts by 
writing under their hands and seals among the persons enti- 
tled thereto, that is to say, one of such several parts to the 
issue collectively of each of my deceased children, and one 
other of such several parts to the trustees for each of my sur- 
viving children. To have and to hold to such trustees, and 
after the termination of the trust, to the persons entitled, ac- 
cording to the provisions of this my will before contained." 



1881.] Hamilton et ah v. Hamilton et al. 257 



Opinion of the Court. 



And the tenth clause declares that: 

"Tenth — For the purpose of carrying out any of the pro- 
visions of this my will, I give to my executors hereinafter 
appointed, full power and authority to convey in fee simple 
absolute, or otherwise, in their discretion, all or any portion 
of my real estate, and to execute and deliver all proper deeds 
and instruments in writing therefor." 

It is claimed by the executors and trustees, that they, for 
the purpose of the division required by the sixth and ninth 
clauses, are endeavoring to exercise the power conferred on 
them by the tenth. 

The doubt whether the executors may sell and convey 
arises from the fact that, by the tenth clause, testator only 
empowers them to convey in fee simple absolute, or otherwise, 
in their discretion, all or any part of his real estate. In 
terms they are not authorized to sell real estate, but to convey 
it. There would seem to be but two purposes of conveying 
it. One, after a division is made, to vest the title of the share 
of each devisee in him or her, — and the other, to sell all, or a 
portion, of his real estate, to enable the executors to make a 
better and fairer division. 

By the sixth clause, he requires his property to be divided 
between his children and the children of a deceased child Or 
children, — and he so devises it. But in this clause he em- 
powers or requires no one to make the division. But in the 
ninth clause he empowers and directs his executors to make 
the division required by the sixth clause, — and when thus 
divided to allot and distribute the several equal parts by 
writing, under their hands and seals, to the persons entitled 
thereto. Thus it is seen, that the power to convey to the 
devisees so as to vest their several shares in each of them, is 
fully conferred by this ninth clause. It could not, therefore, 
have been intended by the tenth clause to confer this power. 
That clause must, therefore, have been inserted for another 
and different purpose. 
17—98 III. 



258 Hamilton et al. v. Hamilton et al [March 

Opinion of the Court. 

Testator says the power given in the tenth clause is to en- 
able them to carry out any of the provisions of the will. It 
was not, as we have seen, to carry out the provision contained 
in the sixth clause, as that had been provided for in the 
ninth, specifically, and without discretion, whilst the power 
in the tenth is declared to be discretionary. Then the only 
purpose of the tenth clause was to give his executors full dis- 
cretionary power to convey any or all of his real estate, as it 
says, when in their judgment it would be for the interest of 
the estate and the devisees. He knew that portions of it were 
unproductive and liable to the heavy burthens of taxation 
and expense, and if such portions should be allotted to 
his daughters to be held in trust during their lives, it 
would not be desirable. Or, if a fair and equal division was 
impracticable, he no doubt intended his executors, if they 
thought it best, to sell and convey such portion as would be 
advantageous to his estate and to the devisees. But be his 
reasons what they may, he conferred the power, and that 
suffices. 

The power to convey, by all proper deeds and instruments 
in writing, undeniably implies the power to sell. If, as 
authorized, they were to convey in fee simple absolute, they 
would pass the title. And when so conveyed, there would 
virtually be a sale. We, upon an examination of the entire 
will, find nothing repugnant to an exercise of the discretion- 
ary power of the executors to sell and convey any portion of 
the real estate for any of the purposes of the will. If they, 
as trustees, think it wise, in performing the duties of the 
trust, to sell any portion of the estate, we see no want of 
authority, and must hold it is conferred by the tenth clause 
of the will. 

The decree of the Appellate Court is affirmed. 

Decree affirmed. 



1881.] Fitzpatreck v. The People. 259 

Syllabus. Briefs of Counsel. Opinion of the Court. 

Frank Fitzpa trick 

V. 

The People of the State of Illinois. 

Filed at Springfield March 21, 1881. 

Criminal law — of the arraignment. The mention in the record of a criminal 
prosecution, of the prisoner's presence in court, and that he was called upon 
to plead to the indictment, and pleaded not guilty, shows sufficiently an 
arraignment, under our practice. The ancient formality is disused in our 
practice. The furnishing of a copy of the indictment will answer the pur- 
pose of reading the same to the defendant. 

Writ of Error to the Circuit Court of McLean county; 
the Hon. Owen T. Reeves, Judge, presiding. 

Messrs. Stevenson & Ewing, for the plaintiff in error: 
The judgment must be reversed for the reason the record 
fails to show that the accused was arraigned on the indict- 
ment. Rev. Stat. 1845, p. 300, sec. 3; Bouv. Law Die. p. 
126; Arch. Cr. 1070, and note; Schirmer v. People, 33 III. 
276 , Johnson v. People, 22 id. 314. 

Mr. Robert B. Porter, State's attorney, for the People: 
As to what constitutes an arraignment, see Burrill's Law 

Die; Coke's Litt. 263a; Bouv. Law Die; 1 Archb. 350, side 

p. 108; Wharton's Law Die. 

The record shows that the defendant was called on to plead 

and did plead, and that is substantially an arraignment. 

Mr. Justice Sheldon delivered the opinion of the Court: 

This was an indictment for malicious mischief, whereon the 
defendant was found guilty, and sentenced to one year's im- 
prisonment in the penitentiary. 

He assigns for error that the record fails to show that he 
was arraigned on the indictment. The record, after reciting 
the coming of the defendant in custody of the sheriff, and the 



260 Fitzpatrick v. The People. [March 

Opinion of the Court. 

disposition of a motion made by his attorney to quash the in- 
dictment, proceeds: "And now the defendant being called 
upon to plead thereto, says that he is not guilty," etc. 

Our statute (Rev. Stat. 1874, p. 410, sec. 3,) provides: 
" Upon the arraignment of a prisoner it shall be sufficient, 
without complying with any other form, to declare orally that 
he is not guilty, and the mention of the arraignment and 
such plea shall constitute the issue between the people of the 
State and the prisoner." 

Blackstone says: "To arraign is nothing else but to call 
the prisoner to the bar of the court to answer the matter 
charged upon him in the indictment." 4 Black. Com. 322. 
Though he remarks further, that, when brought to the bar, 
the prisoner is to be called upon by name to hold up his 
hand; that then the indictment is to be read to him distinctly 
in the English tongue, that he may fully understand his 
charge ; after which it is to be demanded of him whether he be 
guilty of the crime whereof he stands indicted, or not guilty. 
The ancient formality attending the arraignment of a prisoner 
is disused in our practice. The statutory requirement of 
furnishing the prisoner with a copy of the indictment is a 
better means of information to him of the charge than the 
reading of the indictment to him. 

As the record does not use the technical term "arraigned," 

it may be said that the record should show that what did 

take place amounted to an arraignment. We think that it does 

so show. The mention of the prisoner's presence in court 

and that he was called upon to plead to the indictment, 

shows sufficiently an arraignment under our practice. 

The judgment will be affirmed. 

Judgment affirmed. 



1881.] South v. The People. 261 

Syllabus. Opinion of the Court. 



Palmer South 

v. 

The People of the State of Illinois. 

Filed at Springfield March 21, 1881. 

1. Criminal law — burden of proof — doubt as to guilt. An instruction 
on the trial of one for murder, that "it is a rule of law that the bur- 
den of proving the defendant guilty is upon the prosecution, and if the 
jury are unsatisfied from the nature and character of the evidence, or 
from a want of evidence, as to whether the deceased came to his death at the 
hands of the defendant, or from other cause, or from other hands, they will 
find the defendant not guilty," announces a correct principle of law, and if 
applicable to the facts in evidence, upon which a doubt might reasonably 
arise in the minds of the jury, as to the truth of the testimony implicating 
the accused, or whether he was not at another place when the homicide, if 
any, took place, it is error to refuse it. 

2. Same — confession uncorroborated. Where the evidence, on a trial of one 
charged with murder, fails to establish the corpus delicti, the jury can not 
convict the accused upon his mere confession, made out of court, uncorrobor- 
ated by any facts and circumstances showing the truth of such confession, 
but it is otherwise when the corpus delicti is proved by other evidence in the 
case. 

Writ of Error to the Circuit Court of Macoupin county; 
the Hon. Charles S. Zane, Judge, presiding. 

Mr. C. A. "Walker, for the plaintiff in error. 

Mr. James McCartney, Attorney General, for the People. 

Mr. Justice Craig delivered the opinion of the Court: 

At the June term, 1880, of the Macoupin circuit court, 
Palmer South, plaintiff in error, was indicted for the murder 
of one James C. Hart, in said county, on the 20th day of 
April, 1867. At the following September term of the court 
the defendant pleaded not guilty. A trial was had, which 
resulted in a verdict of guilty, and the jury fixed the impris- 
onment of the defendant in the penitentiary at fourteen year.s. 



262 South v. The People. [March 

Opinion of the Couri. 

The defendant sued out a writ of error, and assigns for a 
reversal of the judgment, two errors: First, that the court 
erred in refusing two of his instructions; second, that the 
evidence is not sufficient to sustain the verdict. 

The defendant, on the 20th day of April, 1867, at the time 
of Hart's death, was seventeen years old. He was then 
residing with Hart, who had, ten or eleven months before, 
married his mother, a widow with seven sons, including the 
defendant. Two of the defendant's brothers, John and 
James, were also residing with Mr. Hart, but it is not inti- 
mated that they were in any manner connected with Hart's 
death. James was then six and John thirteen years old. On 
the 20th day of April, 1867, about noon, these small boys, on 
being sent to the stable by their mother to call Hart to dinner, 
found him dead, hanging by the neck in the stable, which 
was but a short distance from the house in which he resided. 
The two small boys had been working in the field during the 
forenoon, while the deceased and the defendant had been 
about the house and stable, until the defendant, some time 
during the 'forenoon, left on horseback for Mr. Wheeler's 
place, about seven miles distant, where he arrived, as Mr. 
Wheeler testified, between 9 and 11 o'clock. No other person 
was shown to be about the place that forenoon, except Mrs. 
Hart, who was attending to her household duties in the house. 
On the trial, the theory of the defence was, that the deceased 
took his own life, by hanging, and in support of this view it 
was proven that Hart, for two months before his death, was 
in poor health, and at times he did not appear to be in his 
right mind; that on several occasions he had attempted to 
take his own life. While the deceased was found hanging by 
the neck under circumstances which might lead to the belief 
that he had taken his own life, yet there was evidence tend- 
ing to prove that the deceased had, in fact, been murdered by 
some person. Upon an examination of the body a wound 
was found on the forehead, about the size of a half dollar, 
which had the appearance of having been made with a blunt 



1881.] South v. The People. 263 

Opinion of the Court. 

instrument, like the head of a hatchet. There was also a 
braise on the nose, — the bridge of the nose seemed to be 
broken. A bruise was also found on the under side of the 
wrist. One witness who made an examination of the body, 
although not a physician, thinks the skull was fractured and 
the nose broken. After the deceased had been hung, quite a 
quantity of blood came from the wound on the forehead or 
nose and dropped on the stable floor. Blood was found in a 
corn-crib adjoining the stable, on harness hanging in the 
stable, and on the stable wall, which had the appearance of 
having been made by the fingers of a man's hand. Drops of 
blood were also found on the stable floor leading from the 
crib door to the place where deceased was hanging. These 
are facts from which the jury might find that Hart did not 
take his own life, but, on the other hand, that his death was 
caused by violence inflicted by some third party, and that the- 
hanging was a subterfuge, resorted to for the purpose of cov- 
ering up or concealing the crime. But if the evidence was- 
sufficient to establish the fact that Hart was murdered, the^ 
important question then arose, whether the defendant was 
proven to be guilty of the crime. 

The defendant was convicted solely upon his own admis- 1 
sions, as there was no fact or circumstance proven tending tot 
establish his guilt, outside of his own declarations. It has 
been held, in some of the States, that the confession of a party 
not made in open court, or on examination before a magis- 
trate, but to an individual, uncorroborated by circumstances, 
will not justify a conviction, especially in capital cases. 
American Criminal Law, vol. 1, sec. 683, and note. And 
there is much reason and sound sense in the rule. But the 
current of authority is, that a conviction may be had on the 
admissions of a defendant, where the corpus delicti has been 
proven ; but the prisoner's confession, when the corpus delicti 
has not been otherwise proven, has been held insufficient for 
his conviction. Greenleaf on Ev., vol. 1, sec. 217. In this 
case, corpus delicti was proven by evidence entirely independ- 



264 South v. The People. [March 



Opinion of the Court. 



ent of defendant's admissions, and, under the rule announced, 
if the jury were satisfied, beyond a reasonable doubt, that the 
defendant made the admissions testified to by Mrs. Shattuck, 
and the admissions so made were true, then the verdict of 
guilty might follow. And, inasmuch as the defendant's guilt 
was a question of fact, purely for the determination of the 
jury, we might not feel called upon to reverse on the ground 
alone that the verdict was not, in our opinion, fully justified 
by the evidence. 

The two following instructions were asked by the defen- 
dant and refused by the court, and the defendant excepted to 
the decision of the court : 

"The court further instructs the jury, that it is a rule 
of law that the burden of proving the defendant guilty is 
upon the prosecution, and if the jury are unsatisfied, from 
the nature and character of the evidence, or from a want of 
evidence, as to whether the deceased came to his death at 
the hands of the defendant or from other cause, or from 
other hands, they will find the defendant not guilty." 

" The court further instructs the jury, that they can not 
convict the defendant upon his mere confession, made out of 
court, uncorroborated by any facts or circumstances showing 
the truth of such confessions. " 

The first instruction, as we understand it, announces a cor- 
rect proposition of law, and as it was applicable to the facts 
proven before the jury, we perceive no ground upon which 
it could properly be refused by the court. 

As we have before said, there was no evidence intro- 
duced on behalf of the people which would establish 
the guilt of the defendant except the declarations drawn 
out of him when he was reeling drunk, and engaged 
in a drunken quarrel with his mother-in-law, Mrs. Shat- 
tuck. In this conversation he charged her with killing 
her first husband, and she in turn retorted, charging 
him with killing Hart. When or where these declarations 



1881.] South v. The People. 265 

Opinion of the Court. 

were made does not appear from the evidence in the record, 
nor does the motive which induced her to make public the 
declarations appear. Under such circumstances, might not the 
jury have been, as declared by the instruction, unsatisfied 
from the nature and character of the evidence, or from a 
want of evidence, whether the deceased came to his death at 
the hands of the defendant or in some other manner ? If so, 
the instruction was appropriate, and it should have been given 
by the court, and it was error to refuse it. It is true, the law 
does not exonerate a person from what he may say while in- 
toxicated, unless it appears that he is not conscious of what 
he says, but here the declarations were elicited from the 
defendant when he was " reeling drunk/' and engaged in a 
heated quarrel with Mrs. Shattuck, he charging her with a 
high crime and she bringing the same charge against him. 
Now, while this witness Shattuck might possibly possess suffi- 
cient moral virtue and such a high regard for truth as 
afterwards to go upon the stand and truthfully narrate what 
her enemy, who accused her of murder, had said while they 
were in a heated quarrel, yet the rights of the defendant 
and the principles of justice demanded that the jury should 
be so instructed that they might, if they saw proper and the 
facts before them justified it, reject her evidence as unworthy 
of credit. 

If the evidence of Mrs. Hart, the wife of the deceased, be 
true, and she was not impeached, the defendant could not be 
guilty of the crime, notwithstanding the evidence of Mrs. 
Shattuck. Mrs. Hart testified that the defendant left the 
place for Mr. Wheeler's about eight o'clock in the morning; 
she saw him at the gate when he was in the act of starting, 
gave him a "sack" containing some articles to carry to Mrs. 
Wheeler, her sister. She saw Hart at the gate with the de- 
fendant; saw him tie up the halter of his horse. Then she 
went into the house and Hart followed. He then went to 
the field where the small boys were at work, remained until 
ten or half-past ten o'clock, when he returned and remained 



266 Bitter v. Saathoff. [March 

Syllabus. 

about the house until about eleven o'clock, when he went to 
the stable with water for a horse, came back and spoke to a 
man named Smith, who passed the road, and then went to the 
stable again. If it be true, as she says, that Hart was there 
about eleven o'clock, the defendant could not be guilty, as he 
was then seven or eight miles distant, at Mr. Wheeler's place. 
But, however this may be, the rights of the defendant and 
the ends of justice required that the instructions to govern 
the jury should be accurate. 

In regard to the other refused instruction, had the evi- 
dence failed to establish the corpus delicti, then it would 
have been proper, as held in Bergen v. The People, 17 111. 
426, but as the corpus delicti was proven, the instruction did 
not announce the law which should govern the jury under 
the evidence. For the error indicated the judgment will be 
reversed, and the cause remanded. 

Judgment reversed. 



John BittePw 

v. 

Thomas W. Saathoff. 

Filed at Springfield March 21, 1881. 

1. Degree of evidence required in civil actions. In an action of ejectment 
to recover a narrow strip of land separated from the plaintiff's land by 
a division fence, made under a verbal agreement between the plain- 
tiff's grantor and the defendant, where the defence turned mainly upon 
whether the agreement in question in respect to the division line be- 
tween the several premises as a boundary line, had been sufficiently 
established, it was held error to instruct the jury for the plaintiff that the 
defendant must establish his claim to the land, so far as it was based upon 
such agreement, by a clear preponderance of the evidence. 

2. Whether an agreement has been made and acted upon by two 
owners of adjoining lands, that a division fence should be the dividing line 
between their respective premises, is a question of fact for the jury, to be 



1881.] Bitter v. Saathoff. 267 

Briefs of Counsel. 

decided by the preponderance of the evidence, the same as in any other dis- 
puted question of fact. 

Appeal from the Circuit Court of Montgomery county; 
the Hon. Jesse J. Phillips, Judge, presiding. 

Mr. Robert Mc Williams, and Mr. George W. Paisley, 
for the appellant: 

Edward Seott, being the owner of two eighty acre tracts 
of land, sold and conveyed the east forty acres of each tract 
to appellee, Saathoff, in May, 1875. When Scott sold the 
west forties to Bitter, the appellant, there was and now is a 
fence on what they both recognized and treated as a boundary 
line between them. The location of this line is the question 
involved in this suit. 

John Bitter, Jr., testified that Scott kept up the north half 
of the fence, and appellant the south half. The acts and 
declarations of Scott all go to show that he did make an 
agreement with the appellant that the fence should be the 
line between them. Such an agreement when made will be 
sustained. Cutler v. Gallison, 72 111. 113; Yates v. Shaw, 24 
id. 368; Hubbard v. Stearns, 8Q id. 38; Crowell v. Maughs, 
2Gilm.423. 

In instructions 1, 2 and 5, for the appellee, and in instruct- 
ing the jury that the defendant must establish his case by "a 
clear preponderance" of proof, there was error. Crabtree v. 
Reed, 50 111. 206; McDeed v. McDeed, 67 id. 550; Peake v. 
People, 76 id. 289. 

Mr. Ben. E. Johnson, for the appellee: 

The plaintiff below claimed to recover the strip of land as 
belonging to his two forty acre tracts, as shown by the boun- 
dary line established by the survey of Mr. Fish. 

The burden of proof was on the defendant to show 
whether there was a parol agreement that the fence should 
be the boundary line between the lands bought by defendant 
and those owned by Scott, and whether defendant took 



268 Bitter v. Saathoff. [March 



ODinion of the Court. 



possession of the land to the fence by virtue of that agree- 
ment, and the question now arises, were the instructions re- 
quiring the defendant to show by a clear prep onderamce of 
evidence, error to his prejudice. Under the evidence we 
think not. Yates v. Shaw, 24 111. 368; JEnos v. Hunter, 4 
Gilm. 211. 

For other cases where this court has held it necessary to 
establish a right, etc., by clear and entirely satisfactory 
proof, see Myers v. Park, 95 111. 408; Palmer v. Converse, 
60 id. 313; Peck v. Aubart, 95 id. 113; IlcNamara v. Sea- 
ton, 82 id. 498. 

Mr. Justice Mulkey delivered the opinion of the Court: 

This was an action of ejectment, by appellee, to recover 
from appellant a small parcel of land, alleged to be about 
eleven acres, on the west side and constituting a part of the 
south-east quarter of the south-west quarter of section 6, and 
the north-east quarter of the north-west quarter of sec. 7, 
town 8, north range 5 west, being a narrow strip of the full 
length of the two forties, and of sufficient width to make the 
quantity of land above mentioned, but separated from the main 
portion of these forties by a division fence which had pre- 
viously been supposed to be upon the line dividing them and 
the two forties owned by appellant lying immediately west 
of them. The controversy in this case, as will readily be 
perceived, grows out of a difference of opinion between the 
parties as to the true location of the line dividing their respec- 
tive premises. 

The plaintiff recovered in the court below, and the defen- 
dant brings the record to this court for review. 

On the trial in the court below, evidence was introduced 
tending to show that prior to appellee acquiring any inter- 
est in the east forties, and while one Scott, through whom 
both parties claim, owned them, there was a verbal agreement 
between Scott and appellant, who then owned the west forties, 
that the fence in question should be the dividing line between 



1881.] Fitzpatrick v. The People. 269 

Syllabus. 

their premises, and that in pursuance of this agreement the 
fence was subsequently kept up at their mutual expense, 
Scott keeping up the north half and appellant the south half. 
Whether such an agreement was made and acted upon by the 
parties, as is claimed by appellants, was a question of fact to 
be determined by the jury according to the weight or pre- 
ponderance of the evidence. The proof of this fact did not 
require any greater amount or a higher order of evidence 
than is usually required to establish any other ordinary fact 
in a civil proceeding. It was, therefore, error in the court 
to instruct the jury that the defendant "must establish his 
claim to the land so far as it was based upon such an agree- 
ment, by a clear preponderance of the evidence." Crabtree 
y.Reed, 50 111. 206; McDeed v. MeDeed, 67 id. 550; Peak 
v. The People, 76 id. 289. 

So far as the defence was concerned it turned mainly upon 
whether the agreement in question had been sufficiently 
established, and it was therefore highly important to the 
defendant to have the law accurately stated with respect to 
the measure of proof upon that question. This not having 
been done, the judgment of the circuit court must be reversed, 
and the cause remanded for further proceedings. 

Judgment reversed. 



Frank Fitzpatrick 

v. 

The People of the State of Illinois. 

Filed at Springfield March 21, 1881. 



1. Criminal law — return of indictment into court. A recital in the record, 
" this day comes again the grand jury and presents to the court indictments 
in the following cases," among which was one against the defendant, makes 
it sufficiently clear that the indictment against the accused was publicly pre- 
sented to the court, — and that is sufficient. 



270 Fitzpatrick v. The People. [March 

Brief for the Plaintiff in Error. 

2. Same — facts proper to determine the intent accompanying assault. The 
manner, time .and place of an assault by a man upon a woman are all ele- 
ments to be considered by the jury in arriving at. a conclusion as to the in- 
tent with which the assault was made, as, whether to commit a rape, or a 
simple assault. 

3. Same — intent to commit rape need not be shown by defendant's words. It is 
not necessary to a conviction for an assault with intent to commit rape, that the 
defendant should have expressed by words what his intention was in assault- 
ing the prosecutrix. That may be made to appear from his acts and the cir- 
cumstances proven, as well as by his words. 

4. Same — sentence to take effect after expiration of a prior one. There 
is no error in making the punishment by imprisonment in the penitentiary, of 
one convicted on a second indictment, to commence at the expiration of a term 
of imprisonment in another case tried at the same term of court, against the 
same person, the prior conviction and term of imprisonment being specifically 
named in the judgment of the court rendered on the second conviction. 

5. Instruction — in language of the statute. An instruction which states the 
law nearly in the language of the statute, that drunkenness is no excuse for 
crime, is not erroneous. 

6. New trial — misconduct of juror. The fact that a juror in a criminal 
case, on his examination, stated, in good faith, that he did not know the 
defendant, and that if he had ever seen him before he had forgotten him, 
whereas, in fact, he was on a former jury before whom the defendant was 
tried and convicted for an assault, with a deadly weapon, will not disqualify 
the juror, or afford sufficient ground for a new trial. 

Writ of Error to the Circuit Court of McLean county; 
the Hon. Owen T. Keeves, Judge, presiding. 

Messrs. Stevenson & Ewing, for the plaintiff in error, 
claimed that, from the evidence, the defendant was not guilty 
of the crime, there being no proof of any intent to commit a 
rape, and that the proof showed simply an assault, though an 
unprovoked, senseless and reckless one, made while under 
the influence of intoxicating liquor. 

The second and third of the people's instructions were cal- 
culated to mislead the jury. In a case like this, where the 
circumstances are such as to inflame the passions, the instruc- 
tions should be so worded as that they may not be taken as a 



1881.] Fitzpatrick: v. The People. 271 

Brief for the People. 

license for a vent of their passions. Chicago and Alton R. 
R. Co. v. Hurry, 62 111. 326. 

The intent of the defendant in the assault was the vital 
issue. On this question the jury are told, "that it is not 
necessary, to prove that defendant, Fitzpatrick, expressed by 
any words what his intention was in committing the assault." 
"But the intention of Fitzpatrick may be inferred from the 
circumstances of the said assault." This is equivalent to say- 
ing, "the circumstances of this assault will warrant you in 
inferring the intent." 

The first instruction for the people was wrong. Although 
drunkenness is no excuse for crime, yet the jury may take 
into consideration the condition of the accused caused bv 
drunkenness, with the other parts of the case, in settling the 
question of intent. People v. Harris, 29 Cal. 678; People v. 
Eastman, 14 N. Y. 562. 

The judgment should have been arrested, because the record 
fails to show the return of the indictment into open court. 
" This day comes again the grand jury, and present to the 
court," etc., does not show the court was open. Rev. Stat. 
1845, p. 309, sec. 3; 1 Archb. Cr. Pr. 98 n. 1; 4 Black. Com. 
366; Gardner v. People, 3 Scam. 85; Rainey v. People, 3 
Gilm. 71; Gardner v. People, 20 111. 430; Yundt v. People, 
65 id. 372; Aylesivorth v. People, id. 301. 

The sentence is uncertain and indefinite as to the place and 
time of the punishment. Laney v. Cleveland, 34 Ohio St. 
599. 

Mr. Robert B. Porter, State's attorney, for the People : 
The indictment was returned into court, which means 
when convened for the transaction of business. Bouv. Law 
Die. "Court." Gardner v. People, 3 Scam. 86; Rainey v. 
People, 3 Gilm. 71; Schirmer v. People, 33 111. 276; McKen- 
nie v. People, 2 Gilm. 540. 

The judgment is as certain and definite as the circum- 
stances of the case will permit, and is abundantly justified by 



272 Fitzpatrick t7. The People. [March 

Opinion of the Court. 

the authorities. Laney v. Cleveland, 34 Ohio St. 599; Wil- 
liams v. State, 18 Ohio St. 46. 

The intent of the accused in making the assault will be 
sufficiently shown by his words or acts. 2 Archb. Cr. L. 309; 
Feople v. Bates, 2 Park. Cr. R. 27. 

Mr. Justice Scott delivered the opinion of the Court: 

Frank Fitzpatrick was jointly indicted with one Mont- 
gomery, for an assault on the person of Cynthia Morrison, 
with intent to commit a rape upon her. On the trial Mont- 
gomery was acquitted, but Fitzpatrick was found guilty, and 
by the verdict, the time he should serve in the penitentiary 
was fixed at five years. Motions for a new trial and in arrest 
of judgment were severally overruled, and judgment pro- 
nounced in accordance with the verdict. By the judgment 
of the court, the imprisonment of defendant was to com- 
mence at the expiration of the sentence and imprisonment 
pronounced against him in another case, tried at the same 
term of the same court, in which he was indicted for mali- 
cious mischief, and of which he was convicted. Defendant 
brings the case to this court on error, and seeks a reversal 
of the judgment against him. 

One objection taken on the motion in arrest of judgment 
is, it does not appear from the record the indictment was pre- 
sented by the grand jury in " open court." This is a misap- 
prehension of the record. It is recited in the record, "this 
day comes again the grand jury and presents to the court 
indictments in the following cases," among which was this 
one against plaintiff in error. This recital makes it suffi- 
ciently clear the indictment against the accused was publicly 
presented to the court, and that is all the law requires. 
Blackstone, in his Commentaries, says an indictment must be 
publicly presented to the court, and our statute has not made 
any more strictness in this regard necessary than was 
observed at common law. 



1881.] Fitzpatkick v. The People. 273 

Opinion of the Court. 

It is argued, with much earnestness, the testimony fails to 
show accused was guilty of the crime for which he was in- 
dicted, however reckless and wanton his conduct may appear 
to have been. It is conceded a wanton assault was made on 
the prosecutrix. The intent with which the assault was made 
of course characterizes the crime, and determines whether it 
was a felony or a mere misdemeanor. Neither the accused 
nor his counsel have assigned any motive for the assault con- 
sistent with his innocence. If it was not done with the intent 
charged in the indictment, what possible motive could have 
induced the assault? The manner, time and place of the 
assault were all elements to be considered by the jury in 
arriving at a conclusion as to the intent with which the 
assault was made upon the prosecutrix. Considering together 
all the circumstances proven, the verdict is warranted by the 
law and the evidence, and there is no sufficient reason for 
disturbing it for the causes alleged. 

Complaint is made as to the second, third and fifth instruc- 
tions given on behalf of the people. No specific objections 
are pointed out to the second and fifth instructions, and none 
are perceived. As respects the third instruction, it is not 
obnoxious to the criticism made upon it. It is a correct 
principle, and one applicable to the case, that it was not 
necessary to a conviction it must be proved defendant ex- 
pressed by words what his intention was in assaulting the 
prosecutrix. His intention, whatever it was, could be made 
to appear as well from proof of his acts as from spoken 
words. The instruction, as it was given to the jury, does not 
assume, as counsel insist, that an assault had been proven. 
It left the jury, and very properly, to infer the intent of 
the accused from the circumstances of the assault that had 
been proven beyond a reasonable doubt. In that regard there 
was no error in the instruction. 

As to the first instruction given on behalf of the people, it 
states the law nearly in the language of the statute, that 

18—98 III. 



274 Fitzpa trick v. The People. [March 

Opinion of the Court. 

drunkenness is no excuse for crime, and there was no error 
in giving it. 

It is said the sentence of imprisonment is uncertain and 
indefinite, and the insistence is, the judgment, for that reason, 
ought to be reversed. After pronouncing judgment on the 
verdict, that defendant should undergo imprisonment in the 
penitentiary for a period of five years, the court further 
ordered, "the said imprisonment shall begin at the expiration 
of the sentence and imprisonment in case number 2467, on 
the criminal docket of this court, being The People v. Frank 
FitzpatricJc, for malicious mischief, at the present term of this 
court." The propriety of making a sentence for one offence 
commence at the expiration of the sentence and imprison- 
ment for another offence, when the offences are of the same 
nature that they may be joined in the same indictment, is 
conceded. That practice was sanctioned by this court in 
Johnson v. The People, 83 111. 431. The reason for the rule 
makes it applicable to cases for distinct offences in different 
indictments. The same certainty and definiteness is obtaina- 
ble in one case as in the other. Hence the punishment 
defendent is to undergo may be made to commence at the ex- 
piration of a term of imprisonment in another case, at the same 
term of the same court, against him, and which is specifically 
named in the judgment of the court. It is not perceived 
how the sentence could be made more definite, unless the 
court should withhold its judgment until the expiration of 
the sentence of imprisonment in the case named. Such a 
course would necessarily occasion delay and much inconven- 
ience and would be of no possible advantage to defendant. 
Williams v. The State, 18 Ohio St. 46. 

A ground insisted upon for a new trial is on account of the 
misconduct of one of the jurors chosen to try the cause. It 
is made to appear from the affidavit of defendant, the juror, 
on his examination touching his qualifications as a juror in 
the case, in answer to questions propounded to him, stated he 
did not know defendant, and that if he had ever seen him 



1*881.]! Needham v. The People. 275 

Syllabus. 

before he had forgotten him. It also appears from the same 
affidavit, the juror was on a former jury before whom defen- 
dant was tried and convicted for an assault with a deadly 
weapon. It did not disqualify the juror that he had pre- 
viously known defendant. As he stated, if he had ever seen 
defendant before he had forgotten him, and no doubt his 
answer was made in the utmost good faith. There was cer- 
tainly as much to impress the recollection of defendant as 
that of the juror, and yet defendant says he did not learn 
until since the trial that the juror was a member of the for- 
mer jury. Had the attention of the juror been called to the 
facts and circumstances of the former trial no doubt his recol- 
lection would have been refreshed. But this was not done. 
There was no error in the court in refusing a new trial on 
account of any misconduct on the part of the juror. 
The judgment of the circuit court will be affirmed. 

Judgment affirmed. 



Millard Needham 

v. 

The People of the State of Illinois. 

Filed at Springfield March 21, 1881. 

1. Credibility op witness — who shall determine. The jury in a criminal 
case are not obliged to discredit the testimony of detectives and believe that 
of the accused, although cautioned against the danger to be apprehended 
from the testimony given by the former. The witnesses all being before 
the jury it is their province to determine the questions of fact testified to by 
them. 

2. New trial — criminal case — on the evidence. Where all the evidence is 
fairly considered in a criminal case, if this court can not say the verdict of 
conviction has the appearance of being the result of ignorance, passion or 
prejudice, a new trial will not be granted. 

3. Instruction — in the language of the statute. On the trial of one for rob- 
bery, an instruction was given, in the language of the statute, defining the 



276 Needham v. The People. [March 

Brief for Plaintiff in Error. 

offence and prescribing the punishment. It further gave the jury, in the 
language of the statute, the more severe punishment if the defendant was 
armed with a dangerous weapon, with intent, if resisted, to kill of* maim, or 
being so armed should wound or strike the person robbed, or if he had any con- 
federate present so armed to aid or abet him. There was evidence that one 
of the parties robbing struck the person robbed with a pistol. The jury 
found the defendant guilty and fixed his punishment at the lowest time they 
could, without regard to the use of any dangerous weapon: Held, that there 
was no error prejudicial to the defendant, in giving the instruction. 

4. Same — when it works no prejudice. When it is evident, from the finding 
of the jury in a criminal case, that the defendant was in nowise prejudiced 
by an instruction, it forms no ground for a reversal. 

5. Same — good, if substantially correct. It is not sufficient to reverse a con- 
viction, that one of the people's instructions is not literally correct, when it 
is conceded to be substantially so. 

6. Same — modification by the court. On the trial of one for robbery, the 
court was asked on the part of the defendant to instruct the jury that, "con- 
cealment of the robbery does not amount to participation in it," which the 
court modified by adding, "but it is a circumstance to be weighed with all 
others, in determining the question of participation:" Held, that there was no 
error in the modification. 

7. The prisoner in a criminal case has no right to have his side of the case 
presented to the jury in such a way, that by reason of the disconnected and 
one-sided view of the propositions of law, the jury may be in danger of being 
confused and misled as to the law. However perfect or legal a proposition 
in and of itself may be, an explanation or modification which does not tend 
to mislead the jury, or weaken their perception of its true bearing and effect, 
is not objectionable. 

Writ of Error to the Criminal Court of Cook county; 
the Hon. Sidney Smith, Judge, presiding. 

Messrs. Tenney, Flower & Cratty, for the plaintiff in 
error, contended at some length that the conviction was not 
warranted by the evidence, and that even if the defendant Avas 
present at the robbery, taking no part therein, be could not 
be convicted. Consent is not participation. White v. People, 
81 111. 333. 

The confession was made under inducements which ren- 
dered it incompetent as evidence. People v. Johnson, 41 
Cal. 452; People v. Bar rie, 49 id. 342; Porter v. State, 58 



1881.] Needham v. The People. 277 

Opinion of the Court. 

Ala. 95; Ward v. State, 50 id. 120; Austin v. People, 51 111. 
236 ; Gates v. People, 14 id. 435 ; 1 Greenlf. Ev. sec. 219 et seq. 
The instruction that concealment of the robbery does not 
amount to participation in it, should have been given. Coun- 
sel have the right to have a good instruction given as asked, 
without modification. State v. Wilson^ 2 Scam. 225; Joy v. 
Phifer, 11 Ala. 525; Clealand v. Walker, id. 1058; People v. 
Taylor, 36 Cal. 255; Cotton v. State-, 31 Miss. 504; Exchange 
Bank v. Cooper, 40 Mo. 169; Galena, etc. B. B. Co. v. 
Jacobs, 20 111, 488. 

Mr. James McCartney, Attorney General, for the People. 

Mr. Justice Scholfield delivered the opinion of the 
Court: 

Michael Maher, Charles Slensky and Willard Needham were 
jointly indicted for the robbery of one Fred. Foster. Upon 
arraignment, Maher and Slensky pleaded guilty, but Needham 
pleaded not guilty, and a jury was thereupon empanneled, to 
whom the question of his guilt or innocence was submitted 
for trial. The jury returned a verdict of guilty, and fixed 
the punishment at one year's confinement in the penitentiary. 
Motion for new trial was made by Needham, but the court 
below overruled the same, and entered judgment upon the 
verdict; whereupon Needham sued out this writ of error. 
The first ground urged for the reversal of the judgment below 
is, that the verdict is not authorized by the evidence. 

The robbery was committed in the early part of May, 
1880, between ten and eleven o'clock at night, in one of 
the streets of the city of Chicago, as Foster, who was a 
bank clerk and had been detained late with work at the 
bank, was returning home. He identifies Maher and Slenskv 
positively, and says that, although not able to swear posi- 
tively to Needham, he feels morally certain that he was one 
of the party. They advanced upon him from the direc- 
tion opposite that he was going, one behind the others, 
Maher first, Slensky next, and Needham, as he thinks it 



278 Needham v. The People. [March 

Opinion of the Court. 

was, behind. Maher caught him around the neck and 
pressed him to his bosom, lifting him from the ground, so 
that he was unable to give any alarm, and Slensky struck 
him twice, when he became insensible and had no further 
consciousness of what occurred. When consciousness re- 
turned, Foster was lying upon the sidewalk; his watch and 
chain, and his keys and some change which he had in his 
pocket, were gone. It is proven by the testimony of the 
detective, that Needham admitted, immediately after his ar- 
rest, that he participated with Maher and Slensky in this 
robbery, and that he received his part of the money for 
which Foster's watch was pawned by them after the robbery; 
but attempted to palliate his conduct by the fact that he had 
been dragged into the robbery by Maher and Slensky. And 
he admitted, while on the stand as a witness in his own be- 
half, that he was with Maher and Slensky at the time of the 
robbery (although denying that he participated therein), and 
that he ran away with Maher and Slensky after it was com- 
mitted. But counsel argue that Needham's confession, al- 
though they did not object to the admission of the evidence 
of it or move to exclude such evidence from the jury after 
its admission, was made under inducements which rendered 
it incompetent as evidence. There is no proof of this but 
Needham's own testimony. The detectives deny that they 
made any promises or offered auy inducements whatever to 
obtain the confession, but say that it was, on the contrary, 
voluntarily and freely made. The jury were amply warned 
against the dangers to be apprehended from testimony given 
by detectives, in the following instruction, given at the in- 
stance of Needham : 

"The evidence of professional detectives and policemen, 
upon disputed questions of fact arising in criminal cases, 
should always be received with a large degree of caution. 
From the nature of their business, and their frequent and 
constant association with members of the criminal classes, 



1881.] Needham v. The People. 279 

Opinion of the Court. 

their minds are oftentimes unduly biased and prejudiced 
against those accused of crime, and in whose arrest they have 
been instrumental, and their testimony thereby colored 
against them." 

The jury were not obliged to discredit the detectives and be- 
lieve Needham. The witnesses were all before them, and it 
was their province to determine the question of fact. Being 
thus cautioned against the testimony of the detectives, we 
can not presume the jury were inclined to give a too ready 
credence to such testimony. And, when all the evidence is 
fairly considered, we can not say the verdict has the appear- 
ance of being the result of ignorance, passion or prejudice. 
The guilt of Needham seems to be morally certain. 

The next ground urged for the reversal of the judgment 
is, that the court erred in giving the first of the people's in- 
structions. That instruction is as follows: 

" 1. The court instructs the jury, as a matter of law, that 
robbery is the felonious and violent taking of money, goods, 
or other valuable thing from the person of another by force 
or intimidation. Every person guilty of robbery shall be 
imprisoned in the penitentiary not less than one year nor 
more than fourteen years ; or if he is armed with a danger- 
ous weapon, with intent, if resisted, to kill or maim such 
person, or being so armed, he wounds or strikes him, or if 
he has any confederate present so armed to aid or abet him, 
he may be imprisoned for any term of years or for life." 

The objection taken is that the instruction is not applicable 
to the facts of the case. The instruction seems to be a literal 
transcript of that section of the statute which defines robbery 
and prescribes the punishment to be imposed therefor. Un- 
questionably, a robbery was committed, and there is evidence 
that Slensky struck Foster with a pistol, and the reliance to 
be placed upon this evidence was for the consideration of 
the jury. But, apart from this, since it is quite evident that 



280 Needham v. The People. [March 

Opinion of the Court. 

Needham was in nowise prejudiced by this instruction, inas- 
much as, instead of inflicting the severe penalty authorized 
where the party is armed with a dangerous weapon, the jury 
inflicted the mildest punishment they could for the crime of 
robbery, it can not be urged as ground of reversal. Meyer 
v. Pfeiffer, 50 111. 485; Wiggins Ferry Co. v. Higgins, 72 id. 
517; Sterling Bridge Co. v. Baker, 75 id. 139; Hubner v. 
Feize, 90 id. 208; Thorn v. Watson, 5 Gilm. 27; Arenz v. 
Reihle et al. 1 Scam. 340. 

An objection is urged against the people's third instruction, 
that it is not literally accurate. It is conceded that it is sub- 
stantially so, and that is sufficient. 

Needham, among other instructions, asked the court to 
give this instruction : "Concealment of the robbery does not 
amount to participation in it." 

But the court refused to give it as asked, but modified it 
by adding: "But it is a circumstance to be weighed with all 
others in determining the question of participation." 

Counsel argue, upon the authority of Tlie State v. Wilson, 
2 Scam. 225, it was error in refusing to give the instruction 
without modification, — and this is the next ground of error 
urged. 

In the case referred to, the complaint was that the court 
employed different language from that embraced in the in- 
struction asked. 

The court said : "Counsel have a right to require of the 
court to give an instruction as asked, when the same is in 
conformity with the law; and if, in the opinion of the court, 
the jury may not fully comprehend, or may be misled by 
such instruction, unless explained, it is then the province of 
the court to give such additional instructions or explanations 
as may obviate the danger of misapprehension on the part of 
the jury." 

Here, the court gave Needham's instruction in the precise 
language as asked ; but, lest, in that shape it might mislead 
the jury, the course here pointed out was followed by the 



1881.] Needham v. The People. 281 

Opinion of the Court. 

court. Aii addition was made in the way of explanation. 
Surely, the fact that it was on the same piece of paper and so 
was to be read immediately after the instruction, could not 
be an objection. If the right to explain or modify existed, 
then that explanation or modification should have been 
placed where it would be best understood ; and it can not, 
with any plausibility, be claimed that a modification or ex- 
planation of an instrument would be best understood when 
written on a separate paper, and given to the jury at a different 
time, and entirely disconnected from the instruction. 

To a like objection we said, in Lyons et al. v. The People, 
68 111. 279: " The object of instructions is to inform the 
jury what the law is, and so long as they do so correctly, 
they are not objectionable." 

The prisoner in a criminal case has no right to any legal 
legerdemain whereby the jury shall be compelled to try his 
case upon a presentation he alone may choose to make of 
the law. He has no right to have his case submitted in 
such a way that, by reason of the disconnected and one-sided 
view of the propositions, the jury will be in danger of being 
confused and misled as to the law. If a proposition is com- 
plete and needs no explanation or qualification to correctly 
apply it to the evidence in the case, it should not be modified 
or qualified. But, however perfect a legal proposition in 
and of itself may be, an explanation or modification which 
does not tend to mislead the jury or weaken their perception 
of its true bearing and effect, can not be objectionable. 

No claim is or can reasonably be made that the addition here 
does not correctly state the law; and we think it impossible 
it could have tended to mislead or improperly influence the 
jury. 

"We see no cause to disturb the judgment below. It is, 
therefore, affirmed. 

Judgment affirmed. 



282 Carpenter v. Browning et al. [March 

Syllabus. Brief for the Appellant. 



George Carpenter. 
v. 
Margaret Browning et al. 

Filed at Springfield March 21, 1881. 

1. Will — construed as whether creating an active trust or a naked one, or mere 
use. A devise, taking effect before the Married Woman's act of 1861, for an 
equal division of all the testator's estate among his children, except that he 
devised to a son the portions of his estate, real and personal, which would other- 
wise have gone to his daughters, naming them, in trust for the sole and sepa- 
rate use of each of the testator's daughters and their heirs, free from the con- 
trol of the husbands they then had or might thereafter have, free and clear 
from any debt or contract of said husbands, — the rents, issues and profits 
to be paid to his daughters respectively, creates in the son an active trust, 
passing the legal estate and entire possession and control of the lands of the 
daughters to him, and by implication requires him to pay the rents, issues 
and profits to the daughters of the testator. 

2. Same — construed with reference to the law when it took effect. The state of 
the law at the time of the execution of a will often affords material assist- 
ance in arriving at the intention of the testator, when it would otherwise 
be doubtful, and the rights of the parties taking under a will are always to 
be determined by the law as it existed at the time the will took effect. 

3. Trust — whether satisfied or changed by Married Woman's act of 1861. 
Where a testator, by a devise which took effect before the Married Woman's 
act of 1861, devised the real and personal estate given by him to a 
daughter, a married woman, to his son in trust for the sole and separate use 
of the daughter and her heirs, free from the control of her husband, and from 
his debts and contracts, it was held that the Married Woman's act enlarging 
the property rights of married women, did not have the effect of satisfying 
the objects and purposes of the trust, so as to warrant a court of equity in 
directing a conveyance by the trustee to the daughter, but that the trust 
would still exist as originally created. 

Appeal from the Circuit Court of Sangamon county; the 
Hon. Charles S. Zane, Judge, presiding. 

Messrs. Stuart, Edwards \ & Brown, for the appel- 
lant : 

If the trust in George Carpenter was naked and passive, 
the legal title by operation of the statute vested in Margaret 



1881.] Carpenter v. Browning et al. 283 

Brief for the Appellees. Opinion of the Court. 

Browning, and there is no cloud upon her title to be removed. 
The demurrer to the bill should have been sustained. 

But the trust is not a mere naked use. The intention of 
the testator is manifest that the control and possession of the 
land should be and remain in the appellant, and that he 
should collect the rents and pay them over to, the cestui qui 
trust. See Kirhland v. Cox, 94111. 411. 

The will is to be construed by the law as it stood in 1859, 
unaffected by any change in relation to the rights of married 
women. 

Mr. J. H. Matheny, Jr., for the appellees : 

Where an estate is conveyed to one person simply for the 
use of another, or with the intent that the latter shall have 
the rents, issues and profits, the conveyance creates an use 
which the statute executes, for in such case the trustee has no 
duty to perform with respect to the estate. Meacliam v. 
Steele, 93 111. 146. 

The object of this trust has been performed by subsequent 
legislation, and it continues in equity no longer than the 
thing sought to be secured by the trust demands. Kcenig's 
Appeal, 57 Pa. St. 352 ; Parker v. Converse, 5 Gray, 336 ; 
French v. Edwards, 21 Wall. 147; Harris v. Cornell, 80 111. 
67; MeNab v. Young, 81 id. 11; Meacham v. Steele, 93 id. 
145. 

If the legal title vested in the trustee, and the trust sub- 
sequently became a use subject to the statute, a convey- 
ance is necessary and proper. Kirldand v. Cox, 94 111. 401. 

Where an active trust has been accomplished, it is the duty 
of the trustee to execute a conveyance. Perry on Trusts, 
sec. 520. And in case of refusal he is responsible for costs. 
Ibid; Key v. Seates, 37 Pa. St. 31. 

Mr. Justice Mulkey delivered the opinion of the Court: 

This was a proceeding in chancery, instituted in the San- 
gamon circuit court, by Margaret Browning and William 



284 Carpenter v. Browning et al. [March 

Opinion of the Court. 

Browning, her husband, for the purpose of establishing in 
her the legal title to certain real estate, and of removing 
what is claimed to be a cloud upon it. 

The interest which Mrs. Browning has in the land in ques- 
tion, whether the title be legal or equitable, is derived through 
the last will and testament of her father, William Carpenter. 
The clause in the will through which this interest is acquired, 
and the only one that is material to the present controversy, 
is as follows: 

"I devise that all my estate, real and personal, descend 
and be distributed in manner directed by law, with the fol- 
lowing exception, to-wit: That I devise to my son, George 
Carpenter, the portions of my estate, real and personal, 
which would otherwise go to my daughters, Elizabeth Cobb, 
Margaret Browning, Sarah Jane Carpenter and Mary Ellen 
Carpenter, in trust, for the sole and separate use of each of 
my said daughters respectively and their heirs, free from any 
control of the husbands they may now have, or may here- 
after have, and free and clear from any debt or contract of 
said husbands, the rents, issues and profits to be paid to my 
said daughters respectively." 

The will was made on the 23d of August, 1859, and the 
testator died on the 30th of the same month. The bill, after 
setting forth this provision of the will, proceeds to charge 
that the trust created by the will was "a naked use, imposing 
no duties, payment of debts or taxes, control or otherwise," 
on said trustee; "that ever since the partition aforesaid the 
said Margaret has been in possession of said lands and man- 
aged the same, and collected the rents and profits thereof, and 
the said trust and trustee have been wholly passive; that by 
the laws of this State the legal title to said lands has become 
vested in Margaret; that the said trust estate is a cloud upon 
her title and tends to depreciate the value and hinder the 
sale thereof; that they have frequently applied to the said 
George Carpenter to clear up said title and remove the said 
cloud by a conveyance of the said property to the said Mar- 



1881.] Caepenter v. Browning et al. 285 

Opinion of the Court. 

garet, but that he has refused so to do." The bill then prays 
"that the said title of the said George be set aside and de- 
clared null and void, and that he be required to make a 
proper deed of conveyance to Margaret, and for general re- 
lief." George Carpenter, the trustee, interposed a general 
demurrer to the bill, which was overruled by the court; and 
not answering further, a final decree was entered by the court 
in conformity with the prayer of the bill, and the trustee 
thereupon appealed to this court. 

In giving a construction to the will, through which both, 
parties claim, and in determining their respective rights un- 
der it, we must look mainly to the law as it existed at the 
time it was executed, and also at the time it went into effect. 
The state of the law at the time of the execution of a will 
often affords material assistance in arriving at the intentions 
of the testator, when they would otherwise be doubtful, and 
the rights of the parties taking under one are always to be 
determined by the law as it existed at the time it took effect, 
or, in other words, at the time of the testator's death. When 
the present will was executed, and went into effect, the law 
gave to the husband in right of his wife a freehold estate in 
her lands during the marriage, by virtue of which he was 
entitled to their exclusive possession, and the entire rents 
and profits thereof. He could sell or otherwise dispose of 
them as he pleased, without her consent, and they were lia- 
ble to be taken in execution for his individual debts. This 
being the state of the law at the time of the execution of the 
will, it was doubtless the intention of the testator to so dis- 
pose of the land as to place it not only beyond the legal con- 
trol of the husband, but also beyond his power and influence, 
so far as that could be accomplished. Hence the conveyance 
was made to the trustee in the manner we have seen. 

That the trust created by the will w r as originally what is 
known as an active trust, does not admit of a reasonable 
doubt. The land is given to the trustee for the sole and 
separate use of Mrs. Browning and her heirs, free from any 



286 Carpenter v. Browning et al. [March 

Opinion of the Court. 

control of her then or any future husband, and free and 
clear from any of his debts or contracts, and the rents, issues 
and profits of the same are required to be paid to her. It is 
true that it is not stated in express terms that the rents and 
profits are to be paid to her by the trustee, but that is evi- 
dently what is meant. The legal estate and entire possession 
and control of the land having been given to the trustee, no 
one else could lawfully pay them to her but him, or some one 
acting for or through him, which, in contemplation of law, 
would be a payment by himself. Qui facit per alium facit 
per se. 

But it is, in effect, admitted by appellees, in the argument, 
that the trust, in its inception, was an active trust, but claimed 
that it has ceased to be such by reason of subsequent events. 
Indeed, there is no other possible theory upon which the bill 
could be maintained. For, if the supposed trust is simply an 
executed use that took effect as such at the time of the testa- 
tor's death, we are not aware of any principle by which appel- 
lees can treat the will as a cloud upon Mrs. Browning's title. 
"VVe are confident no precedent can be found where a bill has 
been sustained upon such a state of facts. 

It is true that the express averments in the bill are incon- 
sistent with the theory that the trust was an active one in its 
inception, and if the case turned upon them alone, the want 
of equity in the bill would be too palpable to admit of serious 
consideration. But, inasmuch as the provision of the will is 
set out in hcec verba in the bill, so the court can determine 
for itself whether the trust was, in its origin, an active one, 
or an executed use, — it becomes purely a question of construc- 
tion for the court. 

The real question, therefore, in the case is whether the act 
of 1861, enlarging the property rights of married women, has 
had the effect of fully satisfying the objects and purposes of 
the trust so as to warrant a court of equity in directing a con- 
veyance of the estate to Mrs. Browning. We confess we are 
unable to discover upon what principle the statute in ques- 



1881.] Dunlap et al. v. McGhee et al. 287 

Syllabus. 

tion could have such au effect. It was not the intention of the 
legislature, as this court has, in effect, often held, in passing the 
Married Women's act, to at all disturb or affect in any manner 
existing property rights, nor was it within its power to do so. 
The property in question, long before the passage of this act, 
was placed entirely beyond the husband's control, as was evi- 
dently intended by the testator, and, to a large extent, was 
also placed beyond the control of Mrs. Browning herself, and, 
in a modified degree, this same condition of affairs exists at 
the present time. The husband's relations to the wife, and also 
to the property, are substantially the same as when the will was 
made, and also when it went into effect, and to grant the 
relief sought by the bill, under such circumstances, would, 
in our judgment, be to defeat the objects and purposes of the 
testator in making his will. This we are not prepared to do. 
We are clearly of opinion that the trust still exists, and that 
it has not, by reason of any subsequent events, become what 
is known to the law as a dry trust, or executed use. It there- 
fore follows, that the circuit court erred in not sustaining the 
demurrer to the bill, and also in rendering the decree in the 
cause. 

For the errors mentioned, the decree of the circuit court is 
reversed, and the cause remanded, with directions to sustain 
the demurrer to the bill and enter a decree dismissing the 

same. 

Decree reversed. 



M. F. Dunlap et al 

v. 
F. G. McGhee et al 

Filed at Springfield March 21, 1881. 

1. Administration — claims allowed ivithin two years are to be paid pro rata 
in each class. Under the statute relating to the settlement, of estates of de- 



288 Dunlap et al. v. McGhee et al. [March 

Brief for the Appellants. 

ceased persons, the administrator is required to pay the claims allowed at 
any time within two years, according to their classification, commencing with 
the first, and when the estate is insufficient to pay the whole of the demands, 
the demands in any one class shall be paid pro rata, without regard to the 
date of allowance, if within the two years. 

2. When, at the end of the first year, a dividend is made as to the claims 
then allowed in the seventh class, after which and within the two years, 
other demands are allowed, the latter must be paid an equal per cent with the 
first before they can share in the second distribution, so as to place all credi- 
tors in the same class, proving their demands, upon an equal footing. 

Appeal from the Appellate Court for the Third District; — 
heard in that court on appeal from the Circuit Court of 
Morgan county; the Hon. Cyrus Epler, Judge, presiding. 

Mr. "W. P. Callon, and Mr. J. B. Connell, for the ap- 
pellants: 

Under sections 111 and 112, Ch. 3, Rev. Stat. 1877, the 
court is required to order the executor or administrator to 
pay the claims which have been allowed, pro rata, and "upon 
every settlement shall proceed in like manner until all the 
debts are paid or the assets exhausted." The first of these 
sections peremptorily declares it to be the duty of the admin- 
istrator to exhibit his accounts at the first term after the 
expiration of the date of his letters. And by section 113 it 
is made the duty of the court to enforce these settlements. 

Thus it is made the duty of the court to order payment 
upon all claims allowed, without reference to any claims that 
may come in thereafter. The appellees had the same oppor- 
tunity to present and prove their claims at the day fixed for 
adjustment, or before the first report, as the appellants, and 
therefore can not complain if they do not share in the amount 
awarded to the other creditors who had proved their de- 
mands. See also §§ 70 and 71. 

If the rule is a hardship and fails to work equality the 
remedy is with the legislature and not the courts. 



1881.] Dunlap et al. v. McGhee et al 289 

Brief for the Appellees. Opinion of the Court. 

Messrs. Morrison, "Whitlock & Ltppincott, and Mr. 
Wm. Brown, and Mr. K. D. Russell, for the appellees: 

Until questioned in this case, no practice was more gen- 
erally acquiesced in, and no belief more prevalent than that 
creditors of a common class should share pro rata in the 
estate of a deceased debtor, if their claims were presented 
within two years after grant of administration. 

The only penalty attaching to a creditor who fails to prove 
his claim on the adjustment day, is the payment of costs. 
It is only those failing to present their claims within two 
years, who are excluded from participation in the assets of 
the estate. 

The gross injustice that would result from appellants' con- 
struction is almost a conclusive argument against the merit 
of the position. 

Under § 71 of the act relating to the administration of 
estates, all claims are required to be classed, and paid, com- 
mencing in the first class, and when the estate is insolvent 
the demands in any one class shall be paid pro rata, etc. 
This clearly shows that all claims of a particular class 
allowed within two years shall share in payment alike. 

Mr. Justice Sheldon delivered the opinion of the Court: 

The facts appearing from this record are, that on February 
28, 1877, letters of administration issued to Irwin Dunlap 
and James Dunlap, upon the estate of Stephen Dunlap, de- 
ceased. That the administrators fixed upon May 21, 1877, 
as the time for the adjustment of claims against the estate. 
That they made their first annual report to the county court of 
Morgan county, March 8, 1878, wherein they charged them- 
selves with $11,324.65, applicable to the payment of 7th class 
claims. That the amount of 7th class claims at that time 
allowed was $13,026.66. That on the 18th of March, 1878, 
the report was approved and the administrators were ordered 

by the county court to pay a dividend of 48 per cent upon 
19—98 Ill v 



290 Dunlap et al. v. McGhee et al. [March 

Opinion of the Court. 

all 7th class claims allowed up to that time, with which order 
they complied. 

That on March 22, 1879, the administrators filed their sec- 
ond report, which was approved, charging themselves with a 
balance of $7,956.40, collected since their first report. On 
August 2, 1879, they made their third report, showing them 
to have on hand $15,607.83, it being the amount of what was 
on hand at the date of the second report and of what had 
been collected since; also showing that 82 claims in all, of the 
7th class, had been allowed, showing the amount due on each 
claim, aggregating in all $62,521.32. The report was, on the 
same day, August 2, approved, and the moneys on hand 
were ordered by the county court to be distributed pro rata 
on all 7th class claims according to the respective amounts 
then due, as shown by the report. 

Of the 43 claims proved and allowed after the first distri- 
bution, none were filed at the date of the first distribution, 
and a majority were not filed until the 17th of February, 
1879. All the claimants who did not share in the first distri- 
bution appealed to the circuit court, which latter court rever- 
sed the judgment of the county court, and ordered the admin- 
istrators to pay of the funds on hand only those whose claims 
were proved within two years and who did not share in the first 
distribution, until they should have received 48 per cent of 
their claims, or until the funds were exhausted. On appeal 
by those who did not, under this order of the circuit court, 
share in the last distribution, the first distributees, to the 
Appellate Court for the Third District, this judgment of the 
circuit court was affirmed, and said appellants then appealed 
to this court. 

Section 70 of the act in regard to the administration of estates, 
(Rev. Stat. 1874, p. 116,) provides: "All demands against 
the estate of any testator or intestate shall be divided into 
classes, in manner following, to-wit. (enumerating the de- 
mands in the first six classes): 

"Seventh. — All other debts and demands of whatsoever kind, 



1881.] Dunlap et al. v. McGhee et al. 291 

Opinion of the Court. 

without regard to quality or dignity, which shall be exhibited 
to the court within two years from the granting of letters, as 
aforesaid," etc. 

Section 111 provides that all executors and administrators 
shall exhibit accounts of their administration, for settlement, 
to the county court from which the letters were obtained, at 
the first term thereof after the expiration of one year after 
the date of their letters, and, in like manner every twelve 
months thereafter, or sooner, if required, until the duties of 
their administration are fully completed. 

Section 112 is: "Upon every such settlement of the ac- 
counts of an executor or administrator, the court shall ascer- 
tain the whole amount of moneys and assets belonging to the 
estate of the deceased, which have come into the hands of the 
executor or administrator, and the whole amount of debts es- 
tablished against such estate; and if there is, not sufficient to 
pay the whole of the debts, the moneys aforesaid shall be 
apportioned among the several creditors pro rata, according 
to their several rights as established by this act; and there- 
upon the court shall order such executor or administrator to 
pay the claims which have been allowed by the court, accord- 
ing to such apportionments ; and the court, upon every set- 
tlement, shall proceed in like manner until all the debts due 
are paid or the assets exhausted." 

Appellants rely upon these sections, 111 and 112, in sup- 
port of their claim, for a pro rata dividend on the unpaid 
portion of their demands in this second distribution, the same 
as if they had never received a former dividend of 48 per 
cent. Were there no more upon the subject than these two 
sections, they might seem to countenance the claim. But 
there is section 71 standing in the way, which is as follows : 

Section 71. "All claims against estates, when allowed by 
the county court, shall be classed and paid by the executor or 
administrator in the manner provided in this act, commenc- 
ing with the first class; and when the estate is insufficient to 
pay the whole of the demands, the demands in any one class 



292 Dunlap et al. v. McGhee et al. [March 



Ouinion of the Court. 



shall be paid pro rata, whether the same are due by judgment, 
writing obligatory, or otherwise, except as otherwise pro- 
vided." 

Appellants' construction does not consist with, and does 
utter violence to, this section. By the 70th section all de- 
mands not enumerated in the first six classes, which are ex- 
hibited within two years from the granting of letters, are 
placed together and constitute the 7th class, and this section 
71 declares that when the estate is insufficient to pay the 
whole of the demands, the demands in any one class shall be 
paid pro rata. The language is peremptory and unqualified. 
The demands of both appellants and appellees are of the 
7th class. Appellants, on their demands, have received 48 
per cent, because, during the first year of administration and 
at the time of the making of the first annual report and divi- 
dend, they had proved their claims. Appellees have received 
nothing on their claims, because, at the time of the first divi- 
dend, they had not proved their claims, but they have proved 
them within the time given by the statute, viz: two years 
from the taking out of the letters, and this entitles them to 
rank in the 7th class with appellants' claims, and to be paid 
pro rata, with them. 

Nowhere in the statute is there given a preference in favor 
of claims established during the first year of administration, 
nor is there a discrimination made against those which may 
be established after the first and within the second year of 
administration. 

The provision of the statute is equality in payments. Ap- 
pellants occupy no vantage ground other than the accidental 
circumstance of having first proved their claims. There was 
nothing to interfere here in any way with the carrying out 
of this rule of equality, the funds being all on hand and capa- 
ble of being distributed, in accordance with such rule, and we 
see no reason why it should not prevail. 

There is nothing in said sections 111 and 112 of sufficient 
force to overcome it. 



1881.] Flagg v. Geltmacher. 293 

Syllabus. 

The order of the circuit court, that those of this 7th class 
who shared in the first distribution and had received 48 per 
cent of their demands should, in the second distribution, be 
postponed until those of the same class, who had subsequently 
proved their claims and received nothing before, had been 
paid an equal percentage on their demands, was but in obe- 
dience to the statutory direction that the demands in any one 
class shall be paid pro rata, and we hold it to be correct. 

The judgment of the Appellate Court is affirmed. 

Judgment affirmed. 



Maggie E. Flagg 

v. 
John Geltmacher. 

Filed at Springfield March 21, 1881. 

1. Landlord and tenant — attornment after recovery, for possession, is valid. 
Where a tenant, after the sale of the demised premises, attorns to the pur- 
chaser, but after a judgment against him for the recovery of possession in 
favor of his original landlord, in an action of forcible detainer, paid such 
landlord's attorney one month's rent, and agreed with such landlord to 
deposit all subsequent rents in the bank, the arrangement, whether fairly 
made or not, will amount to a valid attornment to the former landlord, and 
creates the relation of landlord and tenant between them. 

2. Trust deed — when payment by original grantor does not extinguish the debt 
or discharge lien. Where the owner of real estate, after having given a deed 
of trust thereon to secure the payment of a loan to him, conveyed the premises 
to another„subject to the incumbrance, which the purchaser expressly agreed 
to assume and discharge, and he conveys to another, and he to a third pur- 
chaser in the same way: Held, that each of the subsequent purchasers be- 
came an original promisor for the payment of the incumbrance, and accepted 
the place of an original mortgagor as to the condition of his title, and the orig- 
inal debtor became virtually a surety for the payment of the debt to the 
creditor, and had the right to pay the same when due, if he chose, without 
cancelling the debt as to them, or releasing the lien, and after such pay- 
ment by him, to become the purchaser at the trustee's sale. 



294 Flagg v. Geltmacher. [March 

Briefs of Counsel. 

Appeal from the Circuit Court of McLean county; the Hon. 
Frakklin Blades, Judge, presiding. 

Mr. William E. Hughes, for the appellant : 

1. If the power of sale contained in a mortgage be extin- 
guished by payment of the debt, or otherwise, no title will 
pass by sale under it even to a bona fide purchaser. Redmond 
v. Packenham, 66 111. 434; Wade v. Harper, 3 Yerger, 383; 
Prenny v. Cook, 19 la. 538; Cameron v. Irwin, 5 Hill (N. Y.) 
272. 

2. If the debt be paid, the power of sale in the mortgage, 
and the mortgage itself, are extinguished and no longer have 
effect. Redmond v. Packenham et al. supra; Emory v. Keig- 
han, 94 111. 543. 

3. If the principal debtor pay the mortgage debt, the 
mortgage is thereby extinguished. Kinley v. Hall, 4 Watts 
& Serg. (Pa.) 426; Thompson v. VanVetchen, 27 N. Y. 568. 

4. A mortgage is only an incident to the debt. Whatever 
extinguishes or bars the debt, operates in like manner on the 
mortgage. Pollock v. Marson, 41 111. 516; Perkins v. Steam, 
23 Texas, 561; Brigg v. Seymour, 17 Wis. 255; Anderson 
et al. v. Neff, 11 Serg. & Kawle, 108. 

5. Whitmer, after he received the notes from Holmes, 
could not have recovered upon them in a suit against Gelt- 
macher, because the latter and not the former had really paid 
them, and it therefore follows, that when Holmes sold them 
there was no mortgage under which to sell. 

Subrogation is not extended, in Illinois, to one paying his 
own debt. Rogers v. Meyers et al. 68 111. 92. 

Mr. H. G. Eeeves, and Messrs. Fifer & Phillips, for the 

appellee: 

We maintain that the mortgaged premises are a primary 
fund for the payment of the debt. Lilly v. Palmer, 51 111. 
331. 



1881.] Flagg v. Geltmacher. 295 

Opinion of the Court. 

Geltmacher having sold the property in such manner as to 
bind his grantees for the payment of the Holmes debt, not 
only is the property holden as to Geltmaeher's immediate 
grantee, but also as to all subsequent grantees. Geltmacher 
could have directly paid the debt of Holmes and still have 
kept alive the trust deed, or he could have had the bonds 
assigned by Holmes to an assignee of his own choosing, which 
he did do, and thus more clearly indicate his intent to keep 
alive the lien of the trust deed, and, in either event, Gelt- 
macher or the assignee is subrogated to all of Holmes' rights, 
and a sale under the trust deed is valid. Johnson v. Zink, 51 
K Y. 333. 

Geltmacher stands, as between himself and his grantees, 
and all claiming under them, as mere surety for the payment 
of his debt, and has unquestionably the right to be subro- 
gated. Matthews v. Aiken, 1 N. Y. 595; Hoy v. Bramhall 
et al. 4 N. J. 573; Hall, Admr. v. Hoxsey et al. 84 111. 716; 
Jones on Mortgages, §§ 878, 879. 

Geltmacher, being pressed for payment, could have these 
notes of Holmes taken up and enforce their payment, by a 
sale of the property. Stanford v. McLean, 3 Paige, 117; 
Jummell v. Jummell, 7 id. 591 ; Holsey et al. v. Reed et al, 9 
id. 446 ; Maosh v. Pike, 10 id. 595 ; Cheny v. Manro, 2 Barb. 
Ch. 618; Cornell v. Prescott, id. (S. Ct.) 15. 

The doctrine of subrogation, applicable to this case, is 
clearly set forth, as we think, in Billings v. Sprague, 49 111. 
509; Fisher v. Dillon, 62 id. 379; City Natio?ial Bank v. 
Dudgeon, 65 id. 11; Darst v. Bates et al. 95 id. 493; Beaver 
v. Blanker, 94 id. 175. 

Mr. Justice Walker delivered the opinion of the Court: 

Appellee was, on the 17th of February, 1873, the owner of 
lots 7 and 10, in block 1, in Durley's addition to the city of 
Bloomington. He, on that date, borrowed of Hufus E. 
Holmes $3000, and gave him three bonds of $1000 each, 



296 Flagg v. Geltmachek. [March 



ODinion of the Court. 



with interest coupons attached, and the debt, by the terms of 
the bonds, matured on the 17th of February, 1878. To 
secure the payment of these bonds, he executed a trust deed 
to Henry C. Wilson, with G. W. Toms as Wilson's succes- 
sor in the trust, which was duly recorded. 

Afterwards, on the 25th of March, 1873, appellee con- 
veyed these lots to Deborah and Elizabeth Simmons, by war- 
ranty deed, but it contained this clause: 

"This deed is made, notwithstanding the covenants of 
warranty hereinafter expressed, subject to the incumbrance 
of one certain trust deed, executed by said first parties to 
Henry C. Wilson, trustee, for the use of Eufus E. Holmes, 
to secure three bonds of $1000 each, with coupons attached 
for semi-annual interest, at the rate often per cent, which is 
made due five years after date, and dated February 17, 1873, and 
duly recorded in the recorder's office of McLean county, Illi- 
nois, in book 49, at pages 128 and 129, said second parties 
hereby agreeing to pay off said incumbrance as part of the 
purchase money of said premises." 

On the tenth of April, 1874, Deborah and Elizabeth Sim- 
mons sold and conveyed these lots to Sophia E. McCaughey, 
with the same stipulation in the deed as that in the deed to 
grantors from appellee to them. 

On the first of November, 1875, Sophia E. McCaughey con- 
veyed the lots to William F. Flagg, the husband of appel- 
lant, but subsequently his name was erased as grantee, and 
that of Maggie R. Flagg inserted. This conveyance is, in 
the same manner, made subject to the Holmes incumbrance, 
but has these words: " Wm. F. Flagg agrees to pay off the 
same." 

When the bonds to Holmes became due, Peter Whitmire, 
president of the People's Bank of Bloomington, at the request of 
appellee, and being secured therefor by appellee, paid Holmes 
$3150, the amount due on the bonds, and took from Holmes 
an assignment of the debt to himself, and demanded payment 
from appellant, but she refused to pay. 



1881.] Flagg v. Geltmachee. 297 

Opinion of the Court. 

^Afterwards, and before the property was sold under the deed 
of trust, appellee paid to the bank the money advanced by 
the president, and paid Holmes ; and on the 17th of February, 
1879, Toms, the trustee, sold the property under the trust 
deed, and appellee became the purchaser and received a deed. 
He then arranged with the tenant of appellant, then in pos- 
session of the property, to recognize him as landlord. 

Appellant thereupon instituted a proceeding in forcible 
detainer, and recovered judgment for possession. Thereupon 
appellee instituted this action of ejectment for the recovery 
of the property. The case was tried by the court and a jury, 
resulting in a verdict in favor of plaintiff, upon which a judg- 
ment was rendered against defendant, and a writ of posses- 
sion was awarded, and she appeals to this court and assigns 
errors on the record. 

It is urged that the* tenant in possession, and sued in this 
suit, was in under appellee and not under appellant, and, 
therefore the suit will not lie. We think this position is not 
sustained by the evidence. Appellant sued in forcible detainer 
and recovered judgment for the possession of the property, 
and Cowen, who was then in, went to appellant's attorney 
and paid him $20, a month's rent, for her, and it was arranged 
that he should deposit the next month's rent in the bank. 
Cowen made an arrangement with appellant to deposit all 
rents in the bank. 

But it is claimed that she consented to the arrangement on 
the false assurance that such an arrangement had been made 
with her attorneys. Even if such be the fact, it is not dis- 
puted that he paid one month's rent to her for the use of the 
premises, and, whether fairly or not, agreed with her to pay 
the subsequently accruing rent into the bank. There can be 
no doubt this was a valid attornment to her as landlord. On 
these facts she could have sued him and recovered rent. Nor 
could he have denied that the relation of landlord and tenant 
existed between them. And, if so, that amounted to an at- 
tornment to her as owner and landlord ; and, if her tenant, 



298 Flagg v. Geltmachek. [March 

Opinion of the Court. 

appellee could sue, and if lie held a legal title superior to 
her, he could recover. 

The only other question pressed on our attention is this: 
was the trust deed when Toms sold and appellee purchased, 
a subsisting lien on the premises, or was the debt to secure 
which it was given, paid and the lien discharged and the 
power of the trustee to sell extinguished ? If the debt was, in 
its full sense, paid, then the power of the trustee was at an end. 

But it is contended that the debt was not so paid as to ex- 
tinguish the lien for the money. Holmes was paid, it is true, 
but did that release the land? 

There can be no pretence that the purchaser from appellee, 
and each subsequent purchaser of the lots, including appel- 
lant, took the property charged, by express stipulation in the 
various deeds, with the payment of the debt to Holmes. 
And there is no pretence that they or either of them paid 
the debt, but appellee did pay all of the interest, except 
the last installment, before the maturity of the debt. And 
she refused to refund the money to Whit mi re when it was 
demanded. Appellee was compelled to pay the money to 
protect his rights, by preventing the property from being sold 
at a sacrifice. As his grantee, and each subsequent grantee 
purchased, they, as a part of the purchase money of the lots, 
agreed to pay the Holmes debt and free the property from 
the lien of the trust deed, but he was still liable on his 
bonds to Holmes, and so was the property. No principle of 
justice required appellee to pay Holmes for the benefit of 
appellant. That was a duty she assumed, or lose the prop- 
erty. Appellant was liable to Holmes and not to appellee; 
and when appellee paid the debt, it was for his own protec- 
tion, and appellant refused to repay and never has refund- 
ed it to him. Surely no one can or will contend for so 
unjust a proposition as that appellant may hold the property 
and refuse to pay for it. Such a proposition can find no 
sanction in the books or any code of morals. 



1881.] Feagg v. Geltmacher. 299 

Opinion of the Court. 

Appellee was under no legal or moral obligation to protect 
the rights of appellant. Their relations were such that he 
could deal with the property as any other stranger. 

Had she created this incumbrance after she purchased, 
appellee would have had the undoubted right to purchase at 
the trustee's sale. She agreed to pay the incumbrance, and 
received a full consideration in the price of the land, and on 
her failing to perform that duty why may he not purchase 
and acquire the title? 

Nor does it matter that he procured the money from the 
bank and paid Holmes, and had the bonds assigned to Whit- 
mire. That did not discharge appellant's duty to pay and 
release the land. Nor did it release the land from the lien. 
Had Whitmire paid his own money without appellee giving 
his note to the bank, all would see the lien was not extin- 
guished or the debt satisfied. That would have but changed 
the owners of the lieu. Appellant could not have claimed 
such a payment to Holmes would release the lien or termi- 
nate the power of the trustee to sell. When she purchased 
she recognized the lien and agreed to pay it or the land 
might be sold to satisfy it, and failing to pay, upon what 
grounds can she insist that appellee shall pay, or when he 
pays, the lien shall not inure to his benefit, or that he shall 
not purchase precisely as might a stranger to the transaction? 

Each subsequent purchaser became, by the terms of the 
stipulations contained in these deeds, an original promisor 
for the payment of the Holmes debt, and accepted the place 
of an original mortgagor, as to the condition of his title, and 
appellee became virtually a surety for its payment to the 
creditor. And as such he had the right to pay if he chose, 
without canceling the debt as to them. He could therefore 
become the purchaser at the trustee's sale. 

The payment, whether by Whitmire or appellee, did not 
discharge the lien against the land in favor of appellee, but 
as to appellant it operated as an assignment of the debt, and 



300 Dickson et al. v. Hitt. [March 

Syllabus. 

did not terminate the power of the trustee to sell or appellee 
to purchase the legal title and to recover and hold the land. 
Inasmuch as appellee has shown the superior legal title, he 
was entitled to recover, and the judgment of the court below 
must be affirmed. 

Judgment affirmed. 



Mary H. Dickson et al. 

v. 

Elisha B. Hitt. 

Filed at Springfield March 21, 1881. 

1. Former adjudication — final settlement of an estate. A final report and 
settlement of an estate by an executor, pursuant to notice, which are approved 
by the probate court and the executor discharged, will be conclusive upon 
creditors of the estate who appeared and contested his claims, and such 
settlement can not be opened on bill in chancery to impeach the same for 
mere errors on the part of the probate court. 

2. Administration — reviewing final settlement for fraud. The failure of an 
executor to account for cattle inventoried and appraised as assets of an 
estate, and giving the same to the widow as her separate property, and 
charging commissions on an uncollected and worthless note, will not be 
regarded such a fraud as will authorize a court of equity to review the 
final settlement of the estate, and correct the judgment of the probate court. 
If such items are claimed as just credits, it is not fraud, and their allow- 
ance amounts to an error, only, at the most. 

3. Same — where property inventoried is claimed by another. Where an execu- 
tor allows the widow of the testator to retain cattle inventoried by him as 
assets of the estate, as being her sole and separate property, the fact as 
to the ownership of the cattle becomes a proper question for the probate 
court to decide on the final settlement of the estate, and where the execu- 
tor is not charged with the same it will be presumed that the matter was 
presented to and adjudicated by that court. 

Appeal from the Appellate Court for the Third Dis- 
trict; — heard in that court on error to the Circuit Court 
of Morgan county; the Hon. CYrvUS Epler, Judge, presid- 



1881.] Dickson et al. v. Hitt. 301 

Briefs of Counsel. 

Messrs. Morrison, Whitlock & Lippincott, for the 
appellants : 

The proper remedy was by bill in chancery. Howard v. 
Slagle, 52 111. 336; People, use, etc. v. Lott et al. 36 id. 447. 

The mode of dealing with this property by the executor 
was a fraud upon the devisees, and hence a court of chancery 
will take jurisdiction. MeCreedy v. Mier, 64 111. 495. 

The order of the county court discharging the executor 
and finding that he had fully accounted, was, at most, only 
prima facie evidence of a full and fair accounting, liable to 
be overcome by proof. Hollis et al. v. Holland, 92 111. 494. 

The executor, having kept the funds in his hands idle for 
over twelve months, without any reason therefor, should 
have been charged with six per cent interest. Hough v. 
Hawley, 71 111. 72; MeCreedy v. Mier, 64 id. 495; Pucker v. 
Redman et al. 67 id. 187; Orr v. Kains, 2 Wis. 194; Hart v. 
Ten EycJc, 2 Johns. Ch. 79. 

Messrs. Brown, Kirby & Russell, for the appellee : 

The charge of fraudulent concealment of assets having 
been found against appellants, this court will not reverse 
the decree of the court below on its finding. T. W. & W. 
By. Co. v. Elliot, 76 111. 67. 

The judgment of the court below should be regarded as 
settling the controverted facts. Kightlinger v. Egan, 75 111. 
141; Simmons v. Waldron, 70 id. 281; Connelly v. People, 81 
id. 379; McClelland v. Mitchell, 82 id. 35; Bishop v. Busse, 
69 id. 403; Wiggins Ferry Co. v. Higgins, 72 id. 517. 

The final order of the county court, ordering distribution 
and discharging the executor, is conclusive upon the parties 
complaining. Freeman on Judgments, sec. 319; Herman's 
Law of Estoppel, sees. 51, 52; Crippen v. Dexter, 13 Gray, 
330; Abbott v. Bradstreet, 3 Allen, 587; Cajolle v. Ferrie, 13 
"Wall. 465; Gates v. Treat, 17 Conn. 392. 

All the facts involved having been tried in passing upon 
and approving the executor's report, by a court of competent 



302 Dickson et al. v. Hitt. [March 

Opinion of the Court. 

jurisdiction, can not be again contested between the same par- 
ties. Holcombe v. Phelps, 16 Conn. 126; Hopkins v. Lee, 6 
Wheat. 113; Elliott v. Pier soil, 1 Pet. 34; Dubois v. Dubois, 
6 Cow. 495. 

While an order of the probate court may be impeached for 
fraud, vet a court of chancery has no more power to correct, 
alter or vary a decree of such court than that of any other 
court. Gates v. Treat, 17 Conn. 392; Holcombe v. Phelps, 16 
id. 126. 

Mr. Justice Walker delivered the opinion of the Court: 

This was a bill filed to impeach the final settlement, order 
of distribution, and discharge of appellee as executor of the 
estate of John M. Sitton, deceased, made in and entered by 
the probate court of Scott county, at its June term, 1875. 

The bill was filed bv the creditors of Sitton's estate, char<r- 
ing that appellee, in his reports to the court, in his invento- 
ries and sale bill, omitted to charge himself with a large 
amount of property in value which belonged to and was 
assets of the estate, thus fraudulently misapplying the same 
to the injury of the creditors, who have received only 69 J per 
cent on their claims allowed, in the 6th class, against the 
estate. 

Appellee, however, claims that he has accounted for and 
paid in full for all the money, property and other assets of 
the estate, and he has been rightfully discharged from the 
further administration of the estate, and is not nor should he 
be further charged with anything relating thereto. 

A hearing was had, on the bill and answer, the cross-bill 
and answers, replications, exhibits and proofs. The court 
found for defendant, and dismissed the bill. Complainants 
perfected an appeal from the circuit to the Appellate Court 
for the Third District, where the case was heard and the 
decree of the circuit court affirmed, and they bring the record 
on appeal to this court and urge a reversal. 



1881.] Dickson et al. v. Hitt. 303 

Opinion of the Court. 

It is claimed by appellants, that Sitton died the owner 
and in possession of over $4000 of personal property, 
which appellee has neither inventoried nor accounted for, 
and that he has never accounted for some that he did inven- 
tory, and that he failed to collect and account for a debt of 
some size owing Sitton at the time of his death, and has 
charged, and the probate court allowed him, commissions on 
money never collected or received. These are the items 
which, it is charged, he has fraudulently withheld or for 
which he charged and received an allowance. 

It is claimed that the settlement at the June term, 1875, of 
the probate court of Scott county, was final, and not having 
been reversed, and remaining in full force, it must, at all 
times and in all places, be held conclusive on all parties in in* 
terest. Appellee gave notice that at that term, he would 
make a final report and apply for a discharge from the 
further administration of the estate. At the term, in pursu- 
ance of the notice, appellants appeared by counsel and the 
settlement was made, and appellee was discharged. 

As to them, whatever the law may be as to others, 
this settlement and adjudication must be held final and 
conclusive in a collateral proceeding. They were present 
contesting his claims, and, having had their day in court, 
they have no right to again litigate the same matters in an- 
other proceeding. If dissatisfied with the result of the settle- 
ment, they could have appealed, and if errors were committed 
they could have been corrected. Having appeared and par- 
ticipated in the trial, they, as in any other case, are bound 
by the result. 

Whether the cattle allowed by the executor to Mrs. Sitton 
as her separate property before her husband's death, was 
in fact her separate property, was a question proper to be 
raised before the probate court on the final settlement, and 
should have been so presented and determined, and we must 
presume it was, and adjudicated, and if it was not, no excuse 



304 Dickson et al. v. Hitt. [March 

Opinion of the Court. 

is given why it was not. Nor does the evidence show that 
that property belonged to the estate. 

It is no doubt true, and the bill proceeds on the theory, 
that such a settlement may be impeached for some kinds of 
fraud in the settlement, committed by appellee. But 
such a bill will not lie to correct mere errors committed 
by the probate court in the settlement. 

Then, did the failure to account for the value of the bull, 
and charging commissions on the uncollected and worthless 
note, amount to a fraud, and, if so, was it of the character of 
fraud which authorizes a court of equity to review such a set- 
tlement and correct the judgment rendered by the probate 
court? We think not. Appellee had returned the animal as 
property of the estate, with its appraised value. In this there 
was no fraud or concealment. That inventory and appraise- 
ment were no doubt on file in the probate court, open to the 
inspection of appellants and their counsel at the time of the 
settlement, and the presumption is that it and all other papers 
charging him with assets of the estate were examined, as it is 
not perceptible how a final settlement could have been made 
without taking them into account, and, if so, it may have been 
error not to charge appellee with the appraised value of the 
bull, it being prima facie evidence, and also in allowing him 
commissions on the uncollected note. But we fail to see where- 
in appellee committed any fraud in either. If he claimed them 
for any reason to be just credits, that was not fraud, and the 
probate court allowed their justice. Being simply errors that 
should have been corrected on appeal, a court of equity will 
not take jurisdiction to correct them. 

As to the claim of interest, appellee denies that he used 
any portion of the money for his own use or that he 
made any profit from it. Nor did the probate court, on the 
final settlement, charge him with interest. Under such facts 
a court of chancery will not entertain a bill to ^determine 
whether the probate court erred in not charging him with in- 



1881.] King et al. v. Davenport, Exor. 305 

Syllabus. 

terest, but even if a bill would lie for the purpose, the evi- 
dence fails to show error in the probate court in this 
respect. 

Perceiving no error in the record, the judgment of the 
Appellate Court must be affirmed. 

Judgment affirmed. 



Joseph O. King et al. 

v. 

Bazzil Davenport, Exor. 

Filed at Springfield March 21, 1881. 

1. Police regulations in cities — power to prevent the erection and repair of 
buildings of combustible materials. The delegation of legislative power to a 
city to prohibit the erection, placing or repairing of wooden buildings 
within limits prescribed by ordinance, without permission, and to direct and 
presaribe that all buildings within the limits prescribed shall be made or 
constructed of fire proof materials, and generally to define and declare what 
shall be nuisances, and to authorize and direct the summary abatement 
thereof, etc., is within the competency of legislative power, and authorizes 
the passage of an ordinance prohibiting the erection, or repairing of any 
building within the fire limits, with combustible materials, and providing for 
the summary abatement or removal of the same. 

2. Same — -what may be interdicted in populous towns or cities. Unwhole- 
some trades, slaughter houses, operations offensive to the senses, the deposit 
of powder, the application of steam power to propel cars, the building with 
combustible materials, and the burial of the dead, may be prohibited in the 
midst of dense masses of population, on the general principle that every 
person ought so to use his property as not to injure his neighbor, and that 
private rights must be subservient to the general interests of the community. 

3. An ordinance of a city passed in pursuance of legislative authority, 
establishing fire limits, and declaring a wooden roof put on a building 
thereafter within the fire limits, to be a nuisance, and requiring the city mar- 
shal, under an order from the mayor, to remove the same, is a reasonable exer- 
cise of the police power of the State, and has the force and effect of a statute, 
when set up in justification by the marshal in removing such a roof. 

4. Same — summary abatement without previous trial by jury. As the sum- 
mary abatement of nuisances is a remedy which has ever existed in the 

20—98 III. 



306 King et al. v. Davenport, Exor. [March 

Brief for the Appellants. 

law, its exercise can not be regarded as in conflict with constitutional pi-ovi- 
sions for the protection of the rights of private property, and giving a trial 
by jury. Formal legal proceedings and trial by jury are not appropriate, 
and have never been used in such cases. 

5. The law making power is the sole judge whether the necessity exists for 
the summary abatement of public nuisances, and when, if at all, it will exer- 
cise the right to enact such laws, but the enactment must be a reasonable 
police regulation, made in good faith for the public good. 

6. Ordinance — construed as to the abatement of a nuisance. Where an ordi- 
nance of a city declares the erection, enlargement or repairing of a wooden 
building with materials not fire-proof, a nuisance, and directs the city mar- 
shal to "remove or tear down such building, or such part thereof as may be 
necessary," and a building is repaired in violation of its terms, by putting on 
a new roof of wooden and combustible materials, it will be held to authorize 
the removal of the whole roof thus put on the building. 

Appeal from the Appellate Court for the Third Dis- 
trict; — heard in that court on appeal from the Circuit Court 
of Morgan county; the Hon. Cyrus Epler, Judge, presid- 
ing. 

Messrs. Brown, Ivirby & Russell, and Mr. C. H. 
Dummer, for the appellants : 

1. While as a general rule a municipal corporation can 
not by ordinance declare a forfeiture of property without 
due process of law, in which the right of trial by jury is 
allowed, yet it may declare such a forfeiture, if authorized 
by the legislature, and it is a reasonable 1 ' exercise of the 
police power of the State. 

The establishment of limits within the denser portions of 
cities and villages, within which buildings constructed of in- 
flammable materials shall not be erected or repaired, may 
also, in some cases, be equivalent to destruction of private 
property; but regulations for this purpose have been sus- 
tained, notwithstanding this result. Cooley's Cons. Lim., p. 
594 ; Eespublica v. Duguet, 2 Yeates, 493 ; Wadleigh v. Gil- 
man, 3 Fairfield, 403; Brady v. N. W. Ins. Co. 11 Mich. 
425; Hart v. The Mayor, etc., of Albany, 9 Wendell, 571 ; 
2 Kent's Com. 340; Thorp v. Rutland & Burlington By. Co., 



1881.] King et al. v. Davenport, Exor. 307 

Brief for the Appellee. 

27 Verm. 149; 3 Blackstone's Com. 6; Slaughter House 
Cases, 16 Wall. 36; 3 Black, 5. 

2. It is not a valid objection that the Jacksonville ordi- 
nance provided a penalty for its violation, and that the city 
is therefore precluded from resorting to the remedy of re- 
moval. 9 Wend. 539. 

As to the right to prescribe reasonable police regulations, 
see T. W. & W. By. Co. v. City of Jacksonville, 67 111. 40; 
Baker v. Boston, 12 Pick. 193; Austin v. Murray, 16 id. 
126; Vanderbilt v. Adams, 7 Cow. 349; Stuyvesant v. Mayor 
of New York, 7 Cow. 588. 

The party injured by snch regulations is presumed to be 
compensated by sharing in their advantages. Bore v. Gray, 
2 T. R. 358; Governor, etc. v. Meredith, 4 id. 794. 

Messrs. Morrison, Wiiitlock & Lippincott, for the 
appellee: 

1. If the ordinance is to be construed as authorizing the 
officers of the city to determine whether and when a reason- 
able notice to remove has been given, and thereupon remove 
such building, without first having a judicial determination 
as to whether such building has been raised or repaired, then 
it is void, because the charter does not authorize its passage. 
To create such a tribunal the power must be expressly given. 
Kirk v. Norville, 1 T. R. 124; Wood on Nuisances, 770; City 
of Salem v. Boston B. B. Co., 98 Mass. 481. 

All the powers not expressly granted by the charter, or 
necessary to carry out its powers are treated as denied; noth- 
ing is taken by implication. Leavenworth v. Norton, 1 Kan. 
432; Webster v. Harwentin, 32 Conn. 131 ; Atley v. Edger- 
comb, 53 Me. 447 ; Harper v. Bany, 14 id. 375 ; Kirk v. 
Norville, supra. 

There is no grant in this charter to the city giving the 
power to pass an ordinance directing a ministerial officer of 
the city to decide for himself when he shall enter upon the 
premises of the citizen and destroy or damage it, and such a 



308 King et al. v. Davenport, Exor. [March 

Opinion of the Court. 

power would be judicial in its nature. City of Salem v. 
Boston B. B. Co. 98 Mass. 481. 

Such a power can not be sanctioned unless conferred in 
express terms. Chicago v. Laflln, 49 111. 177 ; Yates v. Mil? 
waukee, 10 Wall. 497. 

2. The ordinance was unconstitutional and void, in not 
providing any mode of ascertaining the existence of the 
alleged fact on which is based the right to remove, abate, or 
destroy the property of the citizen. Yates v. Milwaukee, 
10 Wall. 497; Winfield v. People, 14 Mich. 41; Everts v. 
Council Bluffs, 46 Iowa, 46 ; Babcoch v. City of Buffalo, 
56 N. Y. 262 ; Chicago v. Laflln, 49 111. 177; Underwood v. 
Green, 42 N. Y. 142 ; Wood on Nuisances, 773. 

A city must exercise these police powers in a reasonable 
manner and not arbitrarily. Wood on Nuisances, 776 ; T. 
W. & W. B. B. Co. v. Jacksonville, 67 111. 37 ; Lake View v. 
Bose Hill Cemetery, 70 id. 191. 

Mr. Justice Sheldon delivered the opinion of the Court: 

The city of Jacksonville, in this State, having power, by 
ordinance, to establish fire limits and to declare the building 
or repairing of buildings with combustible materials within 
the fire limits a nuisance, its city council did, by ordinance, 
establish fire limits, and enacted that any building built or 
repaired with other than fire-proof material, or any roof or 
gutter placed on any building, the outer surface of which was 
made with materials other than fire-proof, if within the fire lim- 
its, and done without permission, should be deemed a nuisance, 
and that if the offender, upon reasonable notice, failed to 
remove such wooden building, or wooden part of such build- 
ing, the city marshal, upon the written direction of the 
mayor, should "remove or tear down such building, or such 
part thereof as may be necessary ." The ordinance further 
provided, that the offender should be subject to a fine of 
§100 for each week he failed to remove such wooden build- 



1881.] King et al. v. Davenport, Exor. 309 



Opinion of the Court. 



ing, or wooden part thereof, and that if the city caused the 
removal, the expense of the removal might be recovered of 
the offender. The plaintiff's testatrix violated this ordinance 
by taking off an old and out of repair shingle roof from her 
building, situated within the fire limits, and putting thereon, 
without permission, a new shingle roof. She failing to 
remove the same upon due notice, the roof was removed by 
the city marshal, in conformity with the ordinance. 

She brought this suit of trespass against the mayor and 
marshal of the city for the removing of the roof, and dying 
since the bringing of the suit, her executor was substituted 
as plaintiff. The defendants justified under the ordinance, 
and on trial by the court, without a jury, judgment was ren- 
dered against them for $175, which, on appeal to the Appel- 
late Court for the Third District, was affirmed, and then the 
present appeal taken, the proper certificate having been made 
to authorize it. 

The sole question here presented is upon the validity of 
the ordinance. 

By its charter the following legislative power is delegated 
to the city of Jacksonville: 

"The city council, for the purpose of guarding against the 
calamities of fire, shall have power to prohibit the erection, 
placing or repairing of wooden buildings within the limits 
prescribed by them, without their permission, and direct and 
prescribe that all buildings within the limits prescribed shall 
be made or constructed of fire-proof materials, and to pro- 
hibit the rebuilding of wooden buildings; to declare all 
dilapidated buildings to be nuisances, and to direct the same 
to be removed, repaired or abated, in such manner as they 
shall prescribe and direct; to declare all wooden buildings 
which they may deem dangerous to contiguous buildings, or 
in causing or promoting fires, to be nuisances, and to require 
and cause the same to be removed or abated in such manner 
as they shall prescribe. 



310 King et al. v. Davenport, Exor. [March 

Opinion of the Court. 

"And, generally, to establish such regulations for the pre- 
vention and extinguishment of fires as the city council may 
deem expedient. 

"The city council shall have power to pass, publish, and 
repeal all ordinances, rules and police regulations, not con- 
trary to the constitution and laws of the United States and 
of this State, * * * or proper to carry into effect the 
powers vested by this act in the corporation; to determine 
what shall be a nuisance and provide for the punishment, 
removal and abatement of the same; and also to punish vio- 
lations of its ordinances by fines, penalties and imprison* 
ment," etc. 

"To define and declare what shall be nuisances, and 
authorize and direct the summary abatement thereof." 

There is here given ample authority, we think, for the pas- 
sage of the ordinance in question. 

The inquiry then must be, whether the enactment of such 
a law is within the competency of legislative power. Un- 
wholesome trades, slaughter-houses, operations offensive to 
the senses, the deposit of powder, the application of steam 
power to propel cars, the building with combustible materials, 
and the burial of the dead, may all, says Chancellor Kent, 
be interdicted by law in the midst of dense masses of popu- 
lation, on the general and rational principle that every person 
ought so to use his property as not to injure his neighbors, 
and that private interests must be made subservient to the 
general interests of the community. 2 Kent Com. 340. The 
right to restrain owners of land in towns from erecting 
wooden buildings, except under certain restrictions, has never 
been doubted, or if it has been, the doubt has long since been 
removed. Commonwealth v. TewJcsbury, 11 Mete. 58. Such 
regulation is but "a just restraint of an injurious use of prop- 
erty, which the legislature have authority to make." Id. 59. 
But the particular respect in which the ordinance is assailed, 
is, that it authorizes the abatement of the nuisance summa- 



1881.] King et al. v. Davenport, Exor. 311 

Opinion of the Court. 

rily, without any prior adjudication of the right to exercise 
the power. 

The summary abatement of nuisances is a remedy which 
has ever existed in the law, and its exercise is not regarded 
as in conflict with constitutional provisions for the protection 
of the rights of private property. Blackstone, in his classi- 
fication of remedies by the act of a party, says, " the fourth 
species of remedy by the mere act of the party injured, is the 
abatement or removal of nuisances," — 3 Black. Com. 5, — and 
that "the reason why the law allows this private and sum- 
mary method of doing one's self justice is because injuries 
of this kind, which obstruct or annoy, such things as are of 
daily convenience for use, require an immediate remedy, and 
can not wait the slow progress of the ordinary forms of 
justice." 

Hart v. Mayor, etc. of Albany, 9 Wend. 571, was the case 
of an injunction to restrain the city authorities from remov- 
ing a boat or ark, which Hart had built in the basin at 
Albany, which the authorities were proceeding to remove 
under the city ordinance. The power to do the act by the 
city authorities (which the court affirmed) was placed by 
Justice Sutherland, in his opinion, upon the ground that 
the act of Hart was an unauthorized obstruction in the basin 
at Albany. After holding the ordinance invalid, for reasons 
that do not apply here, he said: "But the real question in 
this case is not whether the ordinance in question, consid- 
ered as a legislative act, is valid, but whether the corporation 
had power, upon any principle whatever, to do the act which 
the ordinance authorized to be done. If this is a case in 
which the corporation, or any other person, had a right sum- 
marily to remove or abate this obstruction, then the objection 
that the appellants, by this course of proceeding, may be 
deprived of their property without due process of law or trial 
by jury, has no application. Formal legal proceedings and 
trial by jury are not appropriate to, and have never been 
used in such cases." 



312 King et al. v. Davenport, Exor. [March 

Opinion of the Court. 

Senator Edmunds, in his opinion, says: "Much stress 
was laid by the counsel upon the fact that the exercise of the 
right claimed by the respondents would result in the destruc- 
tion of their property without the benefit of a trial by jury, 
and that consequently, the ordinance in question was a viola- 
tion of the constitution, and the bill of rights. The same 
objection would apply to the dejection of every nuisance, yet 
nothing is clearer or better settled than the right to exer- 
cise this power in a summary manner, not only where the 
whole community is affected, but where a private individual 
alone is injured. This is a right necessary to the good order 
of society," etc. 

The case of Balcer v. Boston, 12 Pick. 193, respected an 
ordinance providing for filling up a creek for sanitary pur- 
poses, and action thereunder, for filling up the creek, as be- 
ing an injury to private property. The court sustained the 
action of the city, and say: "Police regulations, to direct 
the use of private property so as to prevent its proving per- 
nicious to the citizens at large, are not void, although they 
may, in some measure, interfere with private rights without 
providing for compensation. This principle was settled in 
the cases of Vanderbilt v. Adams, 7 Cow. 349, and Stuyvesant 
v. The Mayor of New York, 7 Cow. 588. And the counsel 
for the failing party in the latter case admitted that the 
principle was too clear to be questioned. i The contrary doc- 
trine/ says the court in the same case, 'would strike at the 
root of all police regulations.' The order of the mayor and 
aldermen stands on the same footing as quarantine and fire 
regulations ; and if by such regulation an individual receives 
some damage, it is considered as damnum absque injuria. 
The law presumes he is compensated by sharing in the ad- 
vantages from such beneficial regulations. Dore v. Gray, 
2 T. E. 358 ; Governor, etc. v. Meredith 4 id. 794." 

The case of Wadleigh v. Gilman et al. 3 Fairfield, 403, is 
one directly in point in support of the present defence. 



1881.] King et al. v. Davenport, Exor. 313 



Omnion of the Court. 



The plaintiff there, in violation of the city ordinance, had 
removed a building built of combustible materials from one 
point within the fire limits to another point within such 
limits. The building was taken by the city authorities, 
without resorting to judicial process, and the owner brought 
his action of trespass. The defendants, the street commis- 
sioner and the city marshal, justified under the ordinance. 
The court held that, under its charter, by implication, the 
city was authorized to make all " necessary police regu- 
lations;" that the ordinance was a discreet exercise of the 
police power, and was a full justification of the acts of the 
defendants. The court say that " police regulations may 
forbid such a use, and such modifications of private property 
as would prove injurious to the citizens generally." "Laws 
of this character are unquestionably within the scope of the 
legislative power, without impairing any constitutional pro- 
visions." 

Judge Cooley, in his work on Constitutional Limitations 
(4th ed.) 748, concludes a discussion of the subject with the 
following statement: "And, generally, it may be said that 
each State has complete authority to provide for the abate- 
ment of nuisances, whether they exist by the fault of in- 
dividuals or not, and even though in their origin they may 
have been permitted or licensed by law. And see Watter- 
town v. Mayo, 109 Mass. 315. 

In Blair v. Forehand, 100 Mass. 136, and Morey v. Brown, 
42 N. H. 373, it was held not unconstitutional to authorize 
the destruction of dogs, without previous adjudication, when 
found at large without being collared according to the stat- 
utory regulation. In the former of which cases it was said: 
"In the exercise of this (police) power, the legislature may 
not only provide that certain kinds of property (either ab- 
solutely, or when held in such a manner or under such cir- 
cumstances as to be injurious, dangerous or noxious), may be 
seized and confiscated upon legal process after notice and 
hearing; but may also, when necessary to insure the public 



314 King et al. v. Davenport, Exor. [March 

Opinion of the Court. 

safety, authorize them to be summarily destroyed by the 
municipal authorities without previous notice to the owner — 
as in the familiar cases of pulling down buildings to prevent 
the spreading of a conflagration or the impending fall of the 
buildings themselves, throwing overboard decaying or in- 
fected food, or abating other nuisances dangerous to health." 

Iii Murray 9 s Lessee v. Hobohen Land Co. 18 How. 272, it 
was held that a distress warrant issued by the solicitor of the 
treasury under the act of Congress of May 15, 1820, against 
a collector of customs for an indebtedness due to the govern- 
ment, was not inconsistent with the constitution of the United 
States in the respect that it prohibits a citizen from being 
deprived of his liberty or property without due process of 
law, as summary process of distress for the recovery of debts 
due to the government was a well known extrajudicial remedy 
of the common law. For like reason, the supporting of this 
ancient extrajudicial remedy of the abatement of a public 
nuisance is not inconsistent with the similar provision in our 
own State constitution. 

In Toledo, Wabash and Western Hallway Co. v. City of 
Jacksonville, 67 111. 40, we said : "What are reasonable regu- 
lations, and. what are subjects of police powers, must necessa- 
rily be judicial questions. The law-making power is the sole 
judge when the necessity exists, and when, if at all, it will 
exercise the right to enact such laws." It was said, however, 
that such regulations must be what they purport to be, police 
regulations, and must be reasonable. In Austin v. Murray, 
12 Pick. 126, the court assumed to determine what was a 
reasonable police regulation, and that the regulation there in 
question was not a police regulation, made in good faith as 
such. 

There can be no doubt, it seems to us, that the ordinance 
in question was a police regulation, proper, and made in good 
faith, " for the purpose of guarding against the calamities of 
fire," in a populous neighborhood; and we must regard it as 
an entirely reasonable regulation. There is no more frequent 



1881.] King et al. v. Davenport, Exor. 315 

Opinion of the Court. 

or admittedly proper exercise of the police power, than that 
of the prohibition of the erection of buildings of combusti- 
ble materials in the populous part of a town, and the only 
means of making such prohibition effectual is by summary 
abatement. Every moment's delay in the removal of the 
nuisance is constant exposure to danger. Before any judicial 
inquiry and hearing could be had in the matter, the whole 
evil sought to be guarded against might be produced. 

The imposition of a penalty would but punish the offender, 
it would not remove the source of danger. This latter is the 
thing which the necessity of the case requires, and immediate 
abatement is the only competent remedy. It is admitted by 
appellee's counsel, an admission they are compelled to make 
under the law, that if this erection were a nuisance at com- 
mon law the city authorities might abate it. But what is a 
nuisance at common law? Blackstone's definition is, what- 
soever unlawfully annoys or doth damage to another, is a 
nuisance. The construction of this wooden roof was an 
unlawful thing, made so by ordinance prohibiting its con- 
struction. That it was, in its nature, injurious, and a source 
of constant danger in a populous place, experience and the 
general prevalence of this sort of legislation we are consid- 
ering, teach us. Such was the view of the legislature in the 
matter, that by the charter of this city, for the purpose of 
guarding against the calamities of fire, they authorized the 
city council to prohibit the erection or repairing of wooden 
buildings within the fire limits they might prescribe, and to 
declare such buildings to be nuisances, and cause the same to 
be abated as they should direct. 

In pursuance of such authority, the city council estab- 
lished fire limits, and by ordinance declared any such roof as 
the one in question, which should be put upon a building 
within such limits, to be a nuisance, and required the city 
marshal, under an order from the mayor, to remove the 
same. 



316 King et ah v. Davenport, Exor. [March 

Opinion of the Court. 

Such an ordinance, enacted in pursuance of legislative 
authority, has the force of a statute, and may be viewed as 
though such, in the treatment of the present subject. We 
have here, then, what is a nuisance in fact, that which is 
declared to be such by ordinance — determined by law to be a 
nuisance — and why may not the remedy by abatement, under 
the ordinance, belong to it as Avell as in the case of any nuis- 
ance at the common law? The reason for it is equally strong. 
As before said, there is no other competent remedy to meet 
the necessity of the case. 

Further, the charter authorizes the provision for summary 
abatement, and the ordinance consequently gives it. How is 
a nuisance to be abated by the city except by a summary pro- 
ceeding? The term itself imports such a proceeding. This 
case is quite different from Yates v. Milwaukee, 10 Wall. 497, 
cited by appellee's counsel, where the court held that the 
mere declaration of the city council could not make an exist- 
ing structure a nuisance unless it had in fact that character, 
and that it was not allowable "that a municipal corporation, 
without any general laws, either of the city or of the State, 
within which a given structure can be shown to be a nuisance, 
can, by its mere declaration that it is one, subject it to 
removal by any person supposed to be aggrieved, or even by 
the city itself." The thing here, we regard, had the charac- 
ter of a nuisance. It was constructed in the face of a general 
ordinance of the city, long before passed, prohibiting any 
such structure, and declaring it to be a nuisance and subject 
to be abated as such. It was a reasonable regulation for the 
future, and plaintiff's defiant disobedience of it leaves her no 
reason for complaint of the declared consequences. 

Exception is taken to the particular wording of the ordi- 
nance, in the respect that the city marshal shall i( remove or 
tear down such building, or such part thereof as may be 
necessary." It is asked, who shall determine what part is 
necessary? The ordinance had before declared the erection, 
repairing or enlargement of such a building a nuisance, and 



1881.] Goltra v. Green et al. 317 

Syllabus. 

the words, "or such part thereof as may be necessary/ 7 evi- 
dently refer to the repairing or enlargement of the building; 
that such part of the building as had been repaired or 
enlarged might be torn down; that is, such part of it as was 
necessary to remove the enlarged or repaired portion. If we 
may imagine some case of a repair where it might be difficult 
to determine what part should be torn down as being neces- 
sary, there could be none such here, where the repair was a 
distinct, separate and entire thing — the putting on the roof 
of a building. As applied to the present case, there can be 
no doubt that the ordinance authorized the removal of the 
whole roof that had been put on. 

We do not, then, find the provision of the city charter 
authorizing the city council to declare the structure in ques- 
tion a nuisance, and to abate it summarily, to be in conflict 
with the constitution, and therefore hold the ordinance to be 
valid, and that it was a justification of the acts of the defend- 
ants in the removal of the roof. 

The judgment of the Appellate Court is reversed, and the 
cause remanded for further proceedings in conformity with 
this opinion. 

Judgment reversed. 

Walker, J.: I am unable to concur in either the reason- 
ing or conclusion announced in this opinion. 



John C. Goltra 

v. 

DeCondray C. Green et al. 

Filed at Springfield March 21, 1881. 

1. Chancery — bill to foreclose — sufficiency of, as to release of homestead. 
Where a bill to foreclose a mortgage alleges that the mortgagor and his wife, 



318 Goltra v. Green et al. [March 

Brief for the Appellant. 

being seized in fee simple of the premises, conveyed them to complainant in 
fee simple, subject to a condition of defeasance, etc., this will be equivalent to 
an averment that the homestead of the mortgagors was released, and a decree 
finding the allegations of the bill to be true amounts to a finding that the 
mortgagors released their homestead right. 

2. Homestead — may be set up in answer when bill is silent. Although a bill 
to foreclose a mortgage is silent in regard to the homestead of the mortgagors, 
or the release of the same, if the answer sets up a homestead right and a fail- 
ure to release the same by the mortgage, this will authorize the court to con- 
sider and determine evidence bearing upon that question, and if the court 
finds for the complainant and orders a sale of all the mortgagors' interest in 
the premises, and bars the mortgagors from all equity of redemption, and in- 
terest in the premises, this will be an adjudication against the defence of 
homestead, and will be conclusive on the parties until reversed in some direct 
proceeding. 

3. Former adjudication — of homestead right, on bill to foreclose, is conclu- 
sive in all collateral proceedings. On a bill to foreclose a mortgage, in which 
it was alleged that the mortgagors conveyed the premises, in fee simple, to 
the complainant, subject to a condition of defeasance, the defendants answered 
setting up a homestead in the premises at the time of the execution of the 
mortgage, and its continuance, and that it had never been released, etc. 
The court, in its decree, found for complainant, and ordered a sale of all the 
defendants' interest in the land, and barred their equity of redemption as to 
the same: Held, that the decree was conclusive against the right of the defen- 
dants to a homestead in the mortgaged premises, until reversed, and pre- 
cluded them from setting up such defence in ejectment brought by the pur- 
chaser under the decree of foreclosure, or by his grantee. 

Appeal from the Circuit Court of Morgan county; the 
Hon. Cyrus Epler, Judge, presiding. 

Messrs. Brown, Kirby & Russell, for the appellant: 

The proof showed a perfect chain of title in the appellant, 
and there is nothing in the record to avoid its force, unless it 
be that the circuit court erred in the foreclosure suit against 
Green, in denying him a homestead, and unless that error 
can now be asserted against an innocent purchaser for value, 
holding under that foreclosure. 

Even conceding there was error in that proceeding, yet, it 
not going to the jurisdiction of the court, it can not affect 



1881.] Goltra v. Green et al. 319 

Brief for the Appellees. 

the title of an innocent purchaser claiming under the decree 
of sale. Wadhams v. Gay, 73 111. 415. 

Even the reversal of a decree or judgment for error not 
affecting the jurisdiction will not affect the title of an inno- 
cent purchaser under the same before reversal. McJilton v. 
Love, 13 111. 494; McLagan v. Brown, 11 id. 519 ; Gaudy v. 
Hall, 36 id. 319 ; Feaster v. Fleming, 56 id. 457; Simms v. Sh- 
ewn, 3 Cranch, 300; Voorhees v. Bank of the United States, 
10 Pet. 475; Gray v. Brignardello, 1 Wall. 634; Homer v. 
Zimmerman, 45 111. 14; Guiteau v. Wisely, 47 id. 433. 

The principle of res adjudicata is so comprehensive as that 
not only are the parties and their privies estopped from 
again litigating that which has been adjudicated in prior pro- 
ceedings, but they are thereby estopped from litigating or 
asserting that which they might and ought to have litigated 
in particular proceedings. That is, even if Green had not 
asserted and litigated his right to a homestead in the fore- 
closure case, since he had the opportunity so to do, and that 
was the appropriate time and occasion, the question now 
raised being within the legitimate sphere of that case, it 
would be considered as res adjudicata. Bigelow on Estop- 
pel, 146; Hamilton v. Quimby, 46 111. 90; Wright v. Dun- 
ning, id. 271 ; Loyd v. Lee, 45 id. 277; Kelly v.Donlin, 70 id. 
378; Rogers v. Higgins, 57 id. 244; Dickson v. Todd, 27 id. 
504; Campbell v. Rankin, 99 U. S. 261. 

Mr. James T. McMillan, and Messrs. Morrison, "VVhit- 
lock & Lippincott, for the appellees: 

In behalf of appellees, we say the greater part of the brief 
of counsel for appellant states propositions of law which we 
do not controvert; but we insist they are not applicable, and 
do not govern in this case. 

The circuit court, in rendering the judgment complained 
of, was doubtless governed by the opinion of this court in 
the case of Asher v. Mitchell, 92 111. 480, which case appel- 
lant's counsel seem to have overlooked. 



320 Goltra. v. Green et al. [March 

Opinion of the Court. 

The question in the case is, what was put in issue in the 
foreclosure suit of Goltra v. Green et ux., and what did the 
court decide? We insist the pleadings in that case did not 
put in issue the question of fact whether Green had, or ever 
had, a homestead estate in the premises, nor did the decree 
rendered adjudge that question. It says not one word on the 
homestead question; simply finds the sum due on the note 
secured by the mortgage, and orders a redeemable sale of the 
premises. This was not sufficient to make the homestead 
right in and to the premises res adjudicata. It is manifest 
from the record in the foreclosure suit, that the question pre- 
sented, and the only one decided, was as to the sufficiency of 
the certificate of acknowledgment of the mortgage as a re- 
lease or waiver of the homestead right. 

Unless an issue on the question of homestead was presented 
and decided, Green was not bound by the decree, but he 
could legally remain in possession as he did, and resist a suit 
at law for possession. West v. Krebaum, 88 111. 263; Trus- 
tees of Schools v. Hooley, 94 id. 394; Asher v. Mitchell, 92 id. 
480; Yeates v. Briggs, 95 id. 79. 

Mr. Justice Craig delivered the opinion of the Court: 

This was an action of ejectment, brought by John C. Gol- 
tra against DeCondray C. Green and William Ferguson, to 
recover the possession of certain real estate in the county of 
Morgan, on the trial of which judgment was rendered for 
the defendants, and plaintiff appealed. The plaintiff claims 
title under a sale of the property by virtue of a decree of 
foreclosure, wherein John W. Goltra was complainant, and 
DeCondray Green and Sarah E. Green his wife, were defend- 
ants. The defendant Green claims a homestead estate in 
the premises, and Ferguson is a mere tenant of Green. It 
appears, that on the 10th day of January, 1877, Green was 
indebted to John W. Goltra in the sum of $4000, and to 
secure the payment, he gave a note due in one year, and a 



1881.] Goltra v. Green et al. 321 

Opinion of the Court. 

mortgage on the property in controversy, which was executed 
by himself and wife. 

The note not having been paid at maturity, John "W. 
Goltra filed a bill to foreclose the mortgage, in which Green 
and his wife were made parties. It was alleged in the bill 
that DeCondray Green, and Sarah E. Green, his wife, being 
seized in fee simple of the premises described in the declara- 
tion, conveyed the same to complainant in fee simple, subject 
to a condition of defeasance, etc. 

The defendants, in their answer, admit thatthey executed a 
mortgage to John W. Goltra, on the date mentioned, on the 
premises described in the bill, but did not convey the prem- 
ises, in fee simple, as alleged. It is then set up in the answer 
that at the time the mortgage was executed, defendant 
Green was occupying the premises with his family as his 
homestead, and he and his family still reside upon and 
occupy the premises as their homestead. That in and by the 
mortgage the defendant Green did not waive or release his 
right of homestead under the homestead laws of Illinois. 

That the mortgage debt is for borrowed money, and not for 
the purchase money. The defendant also filed a cross-bill, 
in which substantially the same facts were alleged as set up 
in the answer. A replication was filed to the answer, and an 
answer to the cross-bill, and the court on the hearing found 
that the allegations of the bill were true and that the equities 
of the case were with complainant. The amount due com- 
plainant was ordered paid within a certain time, and in 
default of payment the premises were decreed to be sold. It 
w T as further decreed that the defendants, and all persons hold- 
ing under them since the commencement of the suit, be 
forever barred and foreclosed from all equity of redemption 
and claim of, in and to the mortgaged premises. Under this 
decree the premises were sold to the mortgagee, complain- 
ant in the bill, and upon the expiration of fifteen months 
allowed for redemption, no redemption having been made, 
he obtained a master's deed. He then sold and conveyed the 
21—98 III. 



322 Goltra v. Green et al. [March 

Opinion of the Court,. 

premises to John C. Goltra, who brought the present action 
to recover the possession of the property. On behalf of the 
defendant it is contended that the pleadings in the foreclosure 
case did not put in issue the question of fact whether Green 
had or ever had a homestead estate in the premises, nor did 
the decree rendered adjudge that question. On the other 
hand it is insisted by the plaintiff that the question of 
Green's homestead right in the premises was res ad judicata, 
and, however so erroneously decided, it was nevertheless 
binding upon him, and his remedy was by appeal or writ of 
error to reverse the decree if there was error, but that such 
error could not be asserted in this action against an innocent 
purchaser for value. 

If the estate of homestead was one of the issues pre- 
sented by the pleadings in the foreclosure case, and was 
passed upon by the court, the decree thus rendered by the 
court is conclusive upon the Greens, who were parties to the 
chancery proceedings, so long as it remains unreversed, and 
that, too, regardless of the fact whether the decision was right 
or erroneous. 

The court had jurisdiction of the parties, and the subject 
matter of the litigation, and the correctness of the decree 
can not be called in question in a collateral proceeding like 
the present action. 

It is true, the bill does not, in terms, contain averments 
which would put in issue the question of defendant's home- 
stead, but the bill contained a general allegation which was 
broad enough and sufficiently, comprehensive to present that 
question. 

The bill alleges that DeCondray Green, and Sarah E. 
Green, his wife, being seized in fee simple of the premises, 
conveyed the same to complainant in fee simple, subject to a 
condition of defeasance, etc. A conveyance in fee simple 
passes the entire estate held at the time the deed is exe- 
cuted by the grantors in the premises conveyed, which would 
of course include a homestead. In other words, the aver- 



1881.] Goltra v. Green et aL 323 

Opinion of the Court. 

merit in the bill is equivalent to an averment that the home- 
stead was released. West v. Krebaum, 88 111. 263. 

But had the bill been silent in regard to the homestead, 
the answer of the defendants clearly presented an issue of 
that character for the determination of the. court under the 
evidence bearing upon the question. 

The answer, in express terms, declared that the defendant, 
at the time the mortgage was executed, was occupying the 
premises, with his family, as a homestead, and that he and 
his family still continue to occupy the premises as their 
homestead ; that the homestead was not released in the mort- 
gage. Under this answer there can be no doubt in regard to 
the fact that the pleadings in the foreclosure case presented 
the identical question which the defendants are relying upon 
here to defeat the action of ejectment, namely, that the prem- 
ises are defendants' homestead, and were so occupied when the 
mortgage was executed, and the homestead was not released 
in the manner provided by law. 

It is, however, contended that the decree rendered in the 
foreclosure case, did not adjudge or determine the home- 
stead question. It will be remembered that it was alleged 
in the bill that the premises were conveyed to the complain- 
ant in fee simple, which, as we have before seen, would 
include a release of the homestead. The decree finds the 
allegations of the bill to be true. That being the case, it 
follows that the court from the evidence found that the defen- 
dants had conveyed their homestead right in the premises to 
the complainant in the bill. 

Again, that provision of the decree which directs that the 
premises be'sold and that the Greens shall be barred, forclosed, 
and cut off from all equity of redemption and interest in the 
premises, is comprehensive enough to include all homestead 
rights which the Greens had in the premises. As was said in 
West v. Krebaum, supra : " An order to sell all one's interest 
in land, or an averment that one has conveyed all his inter- 
est in certain land, may include within its terms his home- 



324 Mass. M. L. Ins. Co. v. Robinson. [March 

Syllabus. 

stead interest, if he have any, because that would be a part 
of his interest." We are of opinion the decree was broad 
enough to include, and did include, all right, title and interest 
held by the Greens in the premises, and they are concluded 
by the decree. If the decree was erroneous, the only remedy 
in the hands of the Greens was to appeal or sue out a writ of 
error. They can not, in an action of ejectment, where the decree 
is called in question collaterally, avail of an error ; but on the 
other hand, where the court has jurisdiction of the parties 
and the subject matter, its decree must be held conclusive 
until reversed on appeal or writ of error. 

The judgment of the circuit court will be reversed and the 

cause remanded. 

Judgment reversed. 

Mr. Justice Scott : I do not concur in this opinion. 



The Massachusetts Mutual Life Insurance Company 

v. 
Catharine M. Robinson. 

Filed at Springfield -March 21, 1881. 

1. Party — plaintiff in suit on insurance policy. Where a life policy of in- 
surance contains an express promise and agreement to pay the sum insured 
to the "assured, his executors, administrators or assigns, ninety days after due 
notice and proof of the death" of the assured, the executrix of the assured is 
the proper party to bring suit upon the same, and a subsequent provision in 
the policy that the sum insured is for the express benefit of the wife of the 
assured and their children, will not change the rule. 

2. Practice — consideration of questions of fact. In case of a suit on a 
policy of iusurance coming to this court through the Appellate Court, no 
question of fact can be considered. Where the judgment of the trial court 
is affirmed in the Appellate Court, it implies a finding of the facts the same 
way as the jury did, and this court has no rightful authority to find the facts 
differently. 



1881.] Mass. M. L. Ins. Co. v. Robinson. 325 

Brief for the Appellant. 

3. Interest — on life insurance. Interest is recoverable on the amount of a 
life insurance polic}' from the time it is due and payment is refused. 

4. Insurance — effect of false answers in application made by agent of the in- 
surers. Where the assured makes a full and complete statement of all facts 
that materially affect the risk, and the agent of the company, acting in its be- 
half in preparing the application, of his own accord writes false answers 
to the usual questions propounded, to be signed by the applicant, with the 
advice to him that the omitted facts are immaterial, and the assured, in good 
faith, adopts the application as prepared, the company will be estopped 
from denying its liability on the policy after receiving premiums, when loss 
may occur. 

5. Instruction — presumption as to how understood. It will be presumed 
that the jury understood instructions as they commonly impress the mind. 

6. Error will not always reverse. Entire accuracy in expressing the 
law in instructions is not to be expected in every case, and it is a rule of 
general application that every slight error that may appear, will not be a 
sufficient warrant for reversing the judgment. 

Appeal from the Appellate Court for the Third District; — 
heard in that court on appeal from the Circuit Court of 
Montgomery county; the Hon. Charles S. Zane, Judge, 
presiding. 

Mr. E. McWilliams, for the appellant : 

This action can not be maintained by the executrix of 
the estate of the assured. No one could recover on the 
policy until after the death of the assured. After that event 
he could not sue. The fruits of the contract are solely for 
the benefit of his widow and their children. She and they 
are the parties in interest, and as such, entitled to maintain 
the action. Hogle v. Guardian Life Ins. Co. 6 Robertson, 
567. 

The assured expressly agreed that the questions and 
answers in the application should form a part of the contract 
or policy, and that if the answers were not in all respects 
true, the policy should be void. He also warranted the state- 
ments to be true as stated. A warranty is construed as a 
condition precedent, which must be strictly complied with or 
else the contract is rendered void. Eddy Street Iron Foundry 



326 Mass. M. L. Ins. Co. v. Kobinson. [March 

Brief for the Appellee. 

v.IIamptdon F. & 31. Fire Ins. Co. 1 Cliff. 300; Glendah 
Woolen Co. v. Protection Fire Ins. Co. 21 Conn. 19; Mutual 
Benefit Life Ins. Co. v. Miller, 39 Ind. 475; Ripley v. JEtna 
Fire Ins. Co. 30 N. Y. 136; Bliss on Life Ins. sees. 39, 58; 
May on Ins. p. 627, sec. 513. 

Whether one party, through negligence, mistake, inadver- 
tence, oversight, or purposely, omits to communicate a mater- 
ial fact, the other is wholly exonerated from the contract. 
If there be no fraud, then the concealment must be of a 
material circumstance, and the test of materiality in conceal- 
ment is the same as in misrepresentation. Bliss Life Ins. 
(3d ed.), sees. 40 and 66; Daniels v. Hudson River Fire Ins, 
Co. 12 Cash. 416; Insurance v. Wilkinson, 13 Wall. 222. 

Mr. E. Lane, and Mr. W. T. Coale, for the appellee: 

The action was properly brought in the name of the execu- 
trix. Bailey v. New Fug. Life lis. Co. 114 Mass. 177. See 
Burroughs v. State Ass. Co. 97 id. 359; Gould v. Emerson, 99 
id. 154. 

The policy in this case is quite different from the cases cited 
by appellant, and the cases of St. Raul F. &. M. Ins. Co. v. 
Johnson, 77 111. 599, and Westchester Fire Ins. Co. v. Foster, 
90 id. 121. 

But this question can not be raised for the first time in the 
Appellate Court. Campbell v. New England Mut. Life Ins. 
Co. 98 Mass. 381. 

Parol evidence is admissible, notwithstanding the written 
application, to show that the deceased made true statements 
to the agent when the application was made, and that the 
agent made a false entry. 2 Wharton's Ev. 1172. 

If the applicant correctly states the facts, but the agent re- 
cords them wrongly in the application subsequently signed 
by the assured, the company will be estopped from availing 
itself of any alleged misrepresentation or concealment. 
Bliss Life Ins. 107; Insurance Co. v. Wilkinson, 13 Wall. 222; 
Romley v. Empire Ins. Co. 36 1ST. Y. 550; Anson v. Win** 



1881.] Mass. M. L. Ins. Co. v. Robinson. 327 

Opinion of the Court. 

neshiek Ins. Co. 23 la. 84 ; 2 Whart. Ev. 1173; Wood's Ins. 
276; 3 Baxter (Tenn.), 155; Miller v. Mutual Ins. Co. 31 la. 
216; American Ins. Co. v.Luttrell, 89 111. 314; Rochford Ins. 
Co. v. Nelson, 75 id. 548; Germania Fire Ins. Co. v. McKee, 
94 id. 494. 

Where the agent makes out an application for insurance, 
with a knowledge of the facts, the company will be bound. 
Rochford Ins. Co. v. Nelson, 65 111. 416; Andes Ins. Co. v. 
Fish, 71 id. 623; Mtna Ins. Co. v. Maguire, 51 id. 342; Ec- 
lectic Life Ins. Co. v. Fahrenhrug, 68 id. 463; F. & M. Ins. 
Co. v. Chestnut, 50 id. 118. See also Atlantic Ins. Co. v. 
Wright, 22 id. 473; H. & M. Ins. Co. v. Cormich, 24 id. 461; 
New England F. & M. Ins. Co. v. Schettler, 38 id. 167. 

Mr. Justice Scott delivered the opinion of the Court : 

This suit was brought by Catharine M. Robinson, execu- 
trix of the estate of Ninian A. Robinson, deceased, against 
the Massachusetts Mutual Life Insurance Company, on a 
policy issued by that company on the life of deceased. The 
amount of the risk assumed was $5000, and the policy con- 
tained the following provision in reference to its payment: 

" And the said company do promise and agree, to and with 
the said assured, his executors, administrators or assigns, 
well and truly to pay the said sum insured, to the said 
assured, his executors, administrators or assigns, ninety days 
after due notice, and proof of death of said Ninian A. Rob- 
inson during the continuance and before the termination of 
this policy, the balance of the year's premium, if any, being 
first deducted therefrom. Said sum insured being for the 
express benefit of Catharine M. Robinson, wife of said 
assured, and their children." 

It appears from a stipulation signed by counsel, due notice 
and proof of death of the assured were furnished to defend- 
ant before suit was brought, but on the trial of the cause 
proof thereof was waived from the record by defendant, and 
the defence to the action was placed solely on the merits of 



328 Mass. M. L. Ixs. Co. v. Robinson. [March 

Opinion of the Court. 

the case. For the purpose of obtaining the policy, assured 
made an application in writing to the company, which con- 
tains many answers concerning the health of applicant and 
other facts material to the risk, and the admission of plaintiff 
is, the application offered in evidence is the application on 
which the policy was issued. 

The defence made to the merits of the case was based on 
the alleged fraudulent character of the application upon 
which it is said the company acted in issuing the policy, and 
the deceit practiced on the company in that regard. It is 
shown the application was filled up by a local agent of the 
company, and whether assured was guilty of fraud, or con- 
cealment of facts material to the risk, in his answers to ques- 
tions propounded to him by defendant's agent, as the same 
are written in the application, are matters relied on as vitiat- 
ing the policy. On this question testimony was taken and 
submitted to the jury before the cause was tried, but they 
found the issues for plaintiff and assessed her damages at the 
face of the policy, with interest for the detention. 

A motion for a new trial was overruled and the court 
entered judgment on the verdict. That judgment, on the 
appeal of defendant, was affirmed in the Appellate Court, and 
the company bring the case to this court on their further 
appeal. 

It is plain, the executrix was the proper party to bring the 
suit. The express promise and agreement of the company 
was to pay the sum insured to the " assured, his executors, 
administrators or assigns, ninety days after due notice and 
proof of death " of the assured. The subsequent provision, 
the " sum insured being for the express benefit of Catharine 
M. Robinson, wife of the said assured, and their children, " 
does not change the legal liability. All the assured did was 
to name his wife and children as the beneficiaries of the sum 
insured when the same should be collected. 

It is argued, the word "assured," as used in the policy, is to 
be understood the parties for whose benefit the policy was 



1881.] Mass. M. L. Ins. Co. v. Robinson. 329 



Opinion of the Court. 



taken. Such construction can not be maintained with- 
out doing violence to the words employed. The sum insured 
is for the benefit of Catharine M. Robinson, wife of the "as- 
sured," and their children. 

Plainly, the word " assured," as there used, and elsewhere 
in the policy, means the husband, with whom the contract was 
made, and no reasoning, however subtle, can make it even 
appear to mean anything else. It will be found that in 
every case cited from this court, where the beneficiaries have 
been permitted to recover in their own names, the sum in- 
sured, when the loss should occur, had been specifically made 
payable to such beneficiaries, as was the case in the Westches- 
ter Fire Insurance Company v. Foster, 90 111. 121. 

The point made against the judgment, that has been most 
elaborated, is that no recovery can be had on the evidence as 
it appears in the record. Complaint is made that material 
answers made by assured to questions propounded to him and 
embodied in the application for insurance, and on which the 
policy was issued, were untrue and were known to assured to 
be untrue at the time, and that assured withheld facts within 
his knowledge that would virtually affect the risk. It is 
said the fraud practiced by the assured in this respect was 
sufficient to avoid the policy. 

It is not perceived how the question made can be consid- 
ered in this court. It was one of the issues submitted to the 
jury on the evidence, and their finding was against the posi- 
tion taken by defendant. That finding, on defendant's appeal, 
was afterwards affirmed in the Appellate Court, where it was 
the duty of the court to review evidence on questions of fact. 

As was said in Hayward v. Merrill, 94 111. 349, no such 
duty devolves on this court. Only questions of law are 
reviewable in this court in common law cases. In this case, 
the jury must have found the assured was not guilty of fraud 
in making his application for insurance, otherwise the verdict 
would have been for defendant. An affirmance of the judg- 
ment by the Appellate Court implies a finding of the facts in 



330 Mass. M. L. Ins. Co. v. Robinson. [March 



ODinion of the Court. 



the same way the jury did. Under our statute this court has 
no rightful authority to find the facts differently from what the 
Appellate Court found them to be, and, so far as the questions 
made are questions of fact, or so far as they depend on ques- 
tions of fact, this court is conclusively bound by the finding 
of the Appellate Court. Germania Ins. Co. v. McKee, 94 111. 
494. 

Conceding, as must be done, that on the facts found, plain- 
tiff was entitled to recover, the damages found by the jury 
were warranted by the evidence. Interest was allowed for 
the detention of the sum insured, and that the law permits. 
Notice of and proof of death of the assured having been made 
before suit brought, it does not appear the sum allowed was 
too great. 

Some questions of law, arising on the instructions given at 
the trial, remain to be considered. As respects the warranty 
said to be contained in every application for insurance, the 
general doctrine, as laid down in cases in this and other 
courts, is, that when the assured makes a full and complete 
disclosure of all facts that would materially affect the risk 
about to be assumed, and the agent of the company, acting 
on its behalf, and who may undertake to prepare the applica- 
tion, of his own accord 'writes false answers to the usual ques- 
tions propounded, to be signed by the applicant, with the 
advice to him the omitted facts are immaterial, and the as- 
sured, in good faith, adopts the application prepared by the 
agent for him, the company will be estopped from denying 
its liability on the policy, after receiving premiums, when 
loss may occur. Germania Fire Ins. Co. v. McKee, 94 111. 
494; Andes Ins. Co. v. Fish, 71 id. 620; Insurance Co. v. 
Wilkinson, 13 Wall. 222; Miller v. Mutual Ben. Life Ins. Co. 
31 la. 216. 

So far as the court assumed to state this doctrine in the 
series of instructions given on behalf of plaintiff, it is stated 
with sufficient accuracy. 



1881.] Mass. M. L. Ins. Co. v. Robinson. 331 

Opinion of the Court. 

The criticism made on the first and second instructions is, 
they take from the jury the right of determining for them- 
selves the materiality of facts alleged to have been concealed 
by the assured. This is not a correct reading of the instruc- 
tions. Rightly understood, they make no such impression, 
and the presumption will be indulged the jury understood 
them as they commonly impress the mind. It may be the 
fourth instruction is, in a measure, obnoxious to the criticism 
made upon it. Considering it in connection with other in- 
structions given, as it was the duty of the jury to do, it was 
not so faulty as to have misled them on the real issues in- 
volved. Entire accuracy in expressions of the law in in- 
structions given on the trial of causes is not to be expected 
in every case, and the rule is of general application, that every 
slight error that may appear will not be a sufficient warrant 
for reversing the judgment. 

The series of instructions given on behalf of defendant state 
the law very favorably to the view counsel insisted upon, as 
respects the defence sought to be made. There can be no 
just ground of complaint on that score. All that was mater- 
ial to the defence in the refused instructions seems to have 
been contained in those given, and the court was not bound 
to state the same proposition a second time. The modifica- 
tions made to some of defendant's instructions, seem to have 
been necessary to make them conform to the law as expressed 
in the decisions cited supra. It is certain such modifications 
introduced no error that could, by any possibility, prejudice 
the defence defendant was endeavoring to make. 

The judgment of the Appellate Court must be affirmed. 

Judgment affirmed. 



332 Fitzsimmons v. Cassell. [March 

Syllabus. Brief for the Plaintiff in Error. 

Chaeles Fitzsimmons 

V. 

Anna J. Cassell. 

Filed at Springfield 3Iarch 21, 1881. 

1. Administration — when claim is of sixth class. If one of two executors 
of an estate receives moneys due the estate while acting in that capacity, 
which have not been accounted for, either by him in his lifetime, or by his 
legal representatives after his death, the surviving executor will have the right 
to have the amount so received by his co-executor allowed against his estate 
as a sixth class claim. 

2. Practice — this court precluded from inquiring into facts found by the 
inferior or Appellate Court. By section 89 of the Practice act, this court is 
required to re-examine cases brought to it as to questions of law only, and is 
precluded from calling in question the determination of the inferior or Appel- 
late Courts upon controverted questions of fact, except in the cases named 
in the preceding section. 

3. Same — ivhen Appellate Court must find the facts. Where the evidence 
tends to establish two distinct and opposite states of fact, which would re- 
spectively require different and opposing judgments, it is error in the Appel- 
late Court to reverse the judgment of the trial court without reciting in its 
judgment or final order, the facts as found by the Appellate Court, where no 
question of law is presented by the record, and its judgment will be reversed, 
and the cause remanded with directions, that if it finds the facts as they were 
found in the trial court, to affirm the judgment below, but if it finds the 
facts differently, to render such judgment upon the facts thus found as the 
law shall require, and to recite the same in the final judgment or order. 

"Writ of Error to the Appellate Court for the Third Dis- 
trict; — heard in that court on appeal from the Circuit Court 
of Morgan county; the Hon. Cyrus Epler, Judge, presid- 



Messrs. Morrison, Whitlock & Ltppincott, for the 
plaintiff in error, contended, from the facts in the case and 
the provisions of the will of Joseph J. Cassell, that the 
moneys sought to be charged to the estate of Charles Cassell, 
one of the executors of Joseph J. Cassell's will, did not come 
into his hands as such executor, but were derived from the 



1881.] Fitzsimmons v. Cassell. 333 

Opinion of the Court. 

rents of property devised to the several children of the tes- 
tator, which devise invested them with the title to such 
property, and therefore no trust was created in favor of his 
father's estate as to such moneys, and it was not properly a 
claim in the sixth class. 

Mr. Wm. Brown, and Mr. E. D. Russell, for the defen- 
dant in error. 

Mr. Justice Mulkey delivered the opinion of the Court: 

Anna J. Cassell, as surviving executrix of Joseph J. Cas- 
sell, deceased, filed an account for about eight thousand dol- 
lars in the county court of Morgan county, against the estate 
of Charles Cassell, her late co-executor, and asked that it 
might be allowed as a sixth class claim. 

It is claimed by her, that while he was acting with her as 
co-executor of Joseph CasselPs estate, moneys belonging 
to the estate came into his hands, as such executor, to the 
amount of the claim, which have never been accounted for, 
either by him in his lifetime or by his legal representatives 
since his decease. 

The claim was allowed by the county court, but on appeal 
was disallowed by the circuit court, and on appeal to the 
Appellate Court the judgment of the circuit court was rever- 
sed, and the case now comes here on a writ of error from the 
Appellate Court. 

If the facts are as claimed by defendant in error it is clear 
beyond question that the account was properly allowed by the 
county court as a sixth class claim, for the moneys in his 
hands as executor were clearly held by him in trust for the 
benefit of creditors and distributees under the will, and never 
having accounted for them, the case is brought within the 
express provisions of the statute specifying what shall con- 
stitute sixth class claims. 

Plaintiff in error, on the other hand, denies that the 
moneys unaccounted for by him came into his hands as execu- 



334 Fitzsimmons v. Cassell. [March 

Opinion of the Court. 

tor of Joseph Cassell, deceased, but claims that the moneys in 
question were collected by him as rents of certain property 
belonging to his mother, two sisters, and himself, which they 
respectively acquired through the will of the said Joseph 
Cassell, and over which he had no power or control in his 
character of executor. If the facts are as claimed by plaintiff 
in error, it is equally clear that the claim was improperly 
allowed against hisestate as a sixth class claim. 

So far as we are able to discover from the record before us 
this whole controversy turns upon a pure question of fact, 
namely, whether the moneys unaccounted for by Charles Cas- 
sell and upon which the claim sought to be allowed against 
his estate as a sixth class claim is based, belonged to Joseph 
Cassell's estate, and as such came to the hands of Charles 
Cassell as his executor. 

This question is one which the law has not authorized us 
to determine, and we could not undertake to do so without 
disregarding the express provisions of the statute. Section 
89 of the present Practice act, provides, a Tbe Supreme 
Court shall re-examine cases brought to it by appeal or writ 
of error as to questions of law only, and no assignment of error 
shall be allowed which shall call in question the determination 
of the inferior or Appellate Courts upon controverted questions 
of fact, in any case except those enumerated in the preceding 
section. " It is clear from this section of our statute that 
this court is not permitted to pass upon controverted facts, 
with certain exceptions not embracing this case. 

Where, as in the present case, it appears from the record 
that there is a contrariety of evidence tending to establish 
two distinct and opposite states of fact, which would respec- 
tively require different and opposing judgments, as the one 
or the other might prevail, and the judgment of the Appel- 
late Court simply reverses the judgment of the trial court, 
without reciting in its judgment or final order the facts as 
found by the Appellate Court, and no error of law is pre- 
sented by the record, such judgment will necessarily be 



1881.] The People v. Stsson. 335 

Syllabus. 

erroneous. For in such case, if the Appellate Court finds 
the facts in the same way the lower court did, it should 
affirm its judgment, and not to do so would be error. But 
if, on the other hand, it finds the opposite state of facts, it 
should recite in its final order or judgment the facts thus 
found, so that this court could then say, as matter of law, 
whether the facts as found warranted the judgment rendered, 
and to not do so is error. 

Under such circumstances, this court is unable to deter- 
mine whether the error consists in not having affirmed the 
judgment of the lower court or in having neglected to recite 
in its judgment its findings with respect to the facts. 

For the error indicated the judgment of the Appellate 
Court is reversed, and the cause remanded, with directions to 
the Appellate Court, if it shall find the facts as found by the 
circuit court, to affirm the judgment of that court, but that if 
it finds the facts different from the facts as found by that 
court, to then render such judgment, upon the facts thus 
found, as the law shall require, and recite the same.in its final 
judgment, as directed by the statute. 

Judgment reversed. 



The People of the State of Illinois 
v. 
John W. Sisson. 

Filed at Springfield March 21, 1881. 

1. School law — notice of election as to purchase of school house site, etc. 
Under the school law, the notice required to be given of an election for building 
a school house or purchasing a school house site, is very general, the law not 
requiring that any particular site should be named in the notice, or that it 
should state the amount to be borrowed for the purpose, or that but a 
single question be submitted at any one election. 



336 The People v. Sisson. [March 

Brief for the People. 

2. A notice of an election in a school district "for the purpose of voting 
for a school house site for a school house for district," etc., describing the 
district, and "also for the purpose of voting for or against issuing bonds 
to erect or purchase a school house for said district," was held not liable 
to the objection of indefiniteness and uncertainty as to the site to be voted 
for, or the amount of bonds to be issued, or bad as embracing two questions 
instead of one only. 

3. Same — powers of directors as to purchasing school house and site, and to issue 
bonds. The power given by the statute to borrow money for the purpose of 
building school houses, or purchasing school sites, embraces the power to 
purchase a school site having already a school house thereon, and a failure 
to name in the notice of election, or vote, the amount of the bonds to be 
issued, will leave the directors free to issue any amount that may be neces- 
sary for the purpose of the vote, within the limit fixed by the statute, 
which is five per cent of the taxable property of the district. 

4. The power to borrow money for the purpose of building a school house 
or purchasing a school site, will not preclude the giving of the bonds voted, 
in exchange for a site having a school house already erected thereon. The 
end accomplished thereby is the same as if the bonds were sold, and the 
money realized therefrom used in the purchase. 

5. Failure of consideration — purchase money — failure of title. The pur- 
chaser of land, receiving a deed with covenants of title, can not avoid the 
payment of his obligations for the purchase money, on the ground the grantor 
had no title, if the purchaser's possession has not been disturbed, or the 
paramount title asserted. The same rule applies to the purchase of a 
school house and site by school directors, so that a tax-payer can not resist 
the payment of taxes levied to pay the purchase money, on the ground of 
a failure of title, so long as the possession of the property is undisturbed. 

Writ of Error to the Appellate Court for the Third 
District; — heard in that court on appeal from the County 
Court of Jersey county; the Hon. Robert A. King, Judge, 
presiding. 

Messrs. Snedecker & Hamilton, and Mr. A. A. Good- 
rich, State's Attorney, for the People: 

This election was held under and by virtue of sec. 47, Rev. 
Stat. 1874, p. 962, and is clearly in conformity with the law, 
and valid and binding upon said district No. 8, and the 
school directors of said district executed the bonds of said 
district for the sum of $10,000, and purchased the said lots 4 



1881.] The People v. Sisson. 337 

Brief for the Defendant in Error. 

and 5 voted for at said election, as they were lawfully author- 
ized to do by said election, under the statute aforesaid. 

We contend that lawful authority was conferred upon 
the school directors of district No. 8, by this election, to 
issue the bonds of said district, to purchase said lots 4 and 5, 
in block 2, and the amount of bonds to be issued by them 
not being specified on the ballots cast, the directors are only 
limited in the amount of their issue by said section 47, page 
962, K,ev. Stat. 1874, to five per cent of the taxable property 
of the district, and there is no objection made that the bonds 
issued were in excess of the amount permissible by law. 

Mere irregularities Avill not invalidate an election, and if 
the notice specifies the purpose of the election in such a way 
as to leave no doubt of its meaning, it is valid. Merritt et al. 
v. Farris et al 22 111. 303. 

The bonds having been issued, it must clearly appear that 
they were issued without authority before the tax levied to 
pay interest can be defeated. Chiniquy v. The People ex rel. 
78 111. 570. 

Messrs. Warren & Pogue, for the defendant in error: 

The property for which the bonds were issued was held in 
trust for a primary school house and place of worship, and 
erected with funds donated expressly for such purpose, and 
consequently could not be sold to the school district in viola- 
tion of the trust under which the same was first acquired. A 
donation for a private school can not be appropriated to help 
support the public schools. Mclntire v. Zanesville, 17 Ohio 
St. 352; Phillip Academy Y.King, 12 Mass. 562; Plymouth v. 
Jackson, 15 Pa. St. 44; Green's Brice's Ultra Vires, sees. 
48-51, and 57-79; 2 Perry on Trusts, 352, 349, 350, note 2, 
sec. 733; 2 Story's Eq. Jur. sees. 1162, 1192, 1257 and 1258. 

The ballots of the voters voting for lots 4 and 5 and for the 

issuing of bonds, did not say whether the directors were 

to erect a building thereon or purchase one. Neither the 

notice nor the ballots say one word about issuing bonds to 

22—98 III. 



338 The People v. Sisson. [March 

Opinion of the Court. 

pay for the school site. The propositions voted on were 
distinct and should have been submitted separately. 

Notice of an election upon the question whether a town 
will vote a tax for paying a bounty does not authorize a vote 
to borrow money for this purpose. Atwood v. Town of Lin- 
coln, 44 Yt. 332; Blush v. Colchester, 39 id. 193. 

A school tax voted at a meeting not legally called is void. 
Sains v. School District, 41 Me. 246 ; Rideouts v. School Dis- 
trict, 1 Allen, 232; People v. Castro, 39 Cal. 65; Cooley on 
Taxation, 247-9. 

Mr. Justice Sheldon delivered the opinion of the Court: 

This was an application by the collector of Jersey county, 
to the county court, for judgment against real estate for de- 
linquent tax of 1877, at which time John W. Sisson filed his 
objections to the rendition* of judgment against his real estate 
situate in school district No. 8, township No. 7, range No. 
12, in said county, for three-fifths of the school tax levied for 
the year 1877. The court sustained the objections, rendered 
judgment accordingly, and the plaintiff appealed to the 
Appellate Court for the Third District, where the judgment 
of the county court was affirmed. The cause was thereupon 
brought to this court upon writ of error. 

The objections were, that the three-fifths of the school tax 
complained of was to pay $1000 interest, and $500 principal, 
of $10,000 of the bonds of said school district, which had 
been issued to Hamilton Primary school, a corporation, in 
payment of the purchase money of lots 4 and 5, in block 2, 
in the town of Otterville; and that the bonds were invalid 
because of the insufficiency of the form of the notice for the 
election, which was called for a vote upon the question of the 
issue of the bonds; and also that the said lots were trust 
property and could not be conveyed, wherefore the bonds 
were issued without consideration and were void. The form 
of the notice in the particular which is objected to as being 



1881.] The People v. Sisson. 339 

Opinion of the Court. 

insufficient, was, " for the purpose of voting for a school 
house site, for a school house for district No. 8, in township 
No. 7, north range No. 12, west of the third principal 
meridian, in said Jersey county, State of Illinois. Also for 
the purpose of voting for or against issuing bonds to erect or 
purchase a school house for said district." It appears that 
at the election held in pursuance of the notice, on December 
2, 1876, ninety-four ballots were cast, fifty two of them con- 
taining the words, "For school house site in district No. 8, 
township 7, north range 12, Jersey county, Illinois, lots 4 and 
5, block 2, Otterville, Illinois," and " for issuing bonds," 
and that forty-two ballots were cast with the words on them, 
" Against school house site," and "against issuing bonds." 
At the time, there was a school house on the lots. The dis- 
trict had never before had a school house site, or school 
house. 

• The fault found with the notice is, that it fails to specify 
the questions to be voted upon with sufficient particularity; 
that it should name the particular school house site which 
was to be voted for; that what was to be voted for should be 
stated definitely, and not in the alternative; that the amount 
of the bonds to be issued should have been stated ; that the 
notice does not embrace a vote to pay for a school house site ; 
that the questions here should have been separately sub- 
mitted at different elections; and that there is no power 
given to school directors to purchase a school house already 
erected; and that the authority is only to borrow money, 
and not to exchange bonds for school property. 

The statute provision is (§ 47 School Law, Rev. Stat. 1874, 
p. 962,) that for the purpose of building school houses or 
purchasing school sites, the school directors, by a vote of the 
people, at an election called, and conducted as required by 
section 42 of the act, may borrow money, issuing bonds, etc., 
and all that section 42 requires in this respect, in the notice, 
is that it shall specify "the question or questions to be voted 



340 The People v. Sisson. [March 

Opinion of the Court. 

This is very general, — it does not require that any particu- 
lar site should be named in the notice, or that it should state 
the amount to be borrowed, or that but a single question 
should be submitted at any one election. The circumstances 
here are to be looked at. The school district did not 
own any school house or school house site. There was with- 
in the bounds of the district a school house already built 
on lots 4 and 5, in block 2, in Otterville, belonging to another 
private corporation. The district was undertaking to provide 
for itself a school house of its own. As to be understood in 
the light of the circumstances, the notice, substantially, was 
for a vote upon the question of the purchase of this school 
house already built, or the purchase of a different school site 
and the erection of a school house thereon, and the majority 
vote, "For school house site, lots 4 and 5, block 2, Otter- 
ville," and "For issuing bonds," was a vote for the purchase 
of that school site with the school house thereon, and author- 
ized the school directors to purchase the same. The statute 
requiring nothing more than that the notice should specify 
the question or questions to be voted on, we deem it as in 
substantial compliance with the statute, and sufficient. 

The power given by the statute to borrow money for the 
purpose of building school houses or purchasing school sites, 
embraces, no doubt, the power to purchase a school site hav- 
ing already a school house thereon. The not naming in the 
notice of vote the amount of the bonds to be issued, left the 
school directors free to issue to any amount which might be 
required for the purpose of the vote, within the limit fixed 
by the statute, which is five per cent of the taxable property 
of the district. 

We can not think that the power to borrow money for the 
purpose of building school houses or purchasing school sites 
did not admit the giving of these bonds in exchange for the 
school property. The end accomplished is the same, whether 
the bonds be first sold and their proceeds be paid for the 
property, or the bonds themselves be given directly for it. 



1881.] The People v. Sisson. 341 

Opinion of the Court. 

The suggestion made that property may be bought at better 
advantage with cash than with bonds, we can not judicially 
recognize as of sufficient force as not to allow the giving of the 
bonds directly, in payment for the purchase of the lots. 

As respects the question of title, it appears that in the year 
1834, one Silas Hamilton, died, leaving a will whereby he 
bequeathed four thousand dollars for the establishment of a 
primary school, $2000 of it for the erection of a building 
suitable for a school and a place of worship, and $2000 to 
constitute a fund for the support of a teacher, designating 
the place at or near which the house should be located. That 
the executors of the will, in 1835, purchased at the place 
designated, of Daniel Hamilton, by deed of that date, a parcel 
of land, of which the aforementioned lots 4 and 5, in block 2, 
in Otterville, are apart, the deed naming: "To have and 
to hold to them and their assigns for the purpose of erecting 
a school house and house of public worship thereon," and in 
compliance with the will, the executors erected on the prem- 
ises a house suitable for a school and for a place of public 
worship, and the same was used for such purposes until 1840, 
when the General Assembly of this State passed an act, 
(Laws 1839-40, p. 53) which, after reciting in the preamble 
the provision of said will, and what had been done there- 
under, created a body politic by the name and style of the 
Hamilton Primary School, with power to acquire and hold 
property and convey the same, "together with all donations 
and bequests made by Silas Hamilton for school purposes." 
The school was to be governed by five trustees, and it was 
made "the duty of the trustees of said school to see that the 
donation of the said Silas Hamilton is faithfully applied to 
the objects of the donor." Ever since, until December 15, 
1876, the trustees had the possession of and used the premises 
for the purposes aforesaid. 

In 1873 the trustees tore down and destroyed the school 
house on the premises and built another one, — John G. 
Dougherty, one of the trustees, and the treasurer, loaning 



342 The People v. Sisson. [March 

Opinion of the Court. 

them $6S00 for the purpose, and taking their note. On De- 
cember 15, 1876, the trustees of said Hamilton Primary 
School, made a warranty deed to the trustees of schools of 
said township 7, north range 12, in said Jersey county, for the 
use of this school district No. 8, aforesaid, of said lots 4 and 
5, in the town of Otterville, and the school directors of said 
school district delivered to the said trustees of the Hamilton 
Primary School, in payment of the purchase money for said 
lots 4 and 5, $10,000 of bonds of said school district No. 8, 
in which is embraced the $500 principal, and the $1,000 as 
interest, to pay which the tax objected to in this proceeding 
was levied. Of the bonds, $6,800 were paid to said John G. 
Dougherty, and which he now holds, in exchange for the 
note of that amount which said trustees had given him, for 
said money loaned by him to them. 

We do not see that the question whether or not this school 
district, or the trustees of schools of this township 7, for its 
use, got any title by this deed from the trustees of the Ham- 
ilton Primary School, is before us to be passed upon in this 
proceeding. For, admitting the defect of title, it would not 
avail as a defence in this proceeding. Upon the facts of this 
case, under the decisions of this court, even the school dis- 
trict itself, in a suit against it upon these bonds, could not 
set up in defence this alleged want of title. It appears in 
the case that ever since the 15th of December, 1876, the time 
of the making of said warranty deed, the school directors of 
this school district No. 8 have been in the exclusive and 
peaceable possession of said lots 4 and 5, in block 8, in Otter- 
ville. In Vining v. Leeman, 45 111. 246, this court held that 
a purchaser of land receiving a deed with covenants of title, 
can not avoid the payment of promissory notes given for the 
purchase money, on the ground that the grantor had no title, 
if the purchaser's possession has not been disturbed nor the 
paramount title asserted; and to the same effect Laforge v. 
Mathews, 68 111. 328. If the maker of the bonds could not 
successfully defend against a suit brought to enforce their 



1881.] Webster v. The People ex rel. 343 

Syllabus. 

payment, on the ground of want of title, surely a tax-payer 
can not for such reason resist a proceeding for the collection 
of taxes levied to make such payment. 

The judgment will be reversed, and the cause remanded. 

Judgment reversed. 



John K. Webster 

v. 

The People ex rel. Anton Binkert, Collector. 

Filed at Springfield March 21, 1881. 

1. Appeal — "in cases relating to the revenue." Section 88 of the Practice 
act, as amended by the act of 1879, giving an appeal to this court instead of 
the Appellate Court, "in all cases relating to the revenue," etc., is intended to 
embrace public revenue, whether State or municipal, and all taxes and assess- 
ments imposed by public authority, but not of suits for the recovery of fines 
or forfeitures, or suits under contracts or for other dues to cities, etc. 

2. Corporations — their powers must be warranted by statute. All power 
rightfully exercised by corporate bodies, whether public or private, must be 
conferred by the government, either in express terms or by necessary and 
clear implication. For every corporate act, authority must be found in a 
grant or requirement of a statute. 

3. Taxes — by municipal corporation. Where the statute prescribes a mode 
and purpose of municipal taxation, it must be pursued, and no other mode or 
purpose can be substituted by officials exercising the power. Where a gen- 
eral tax is authorized, and the rate or per cent is prescribed, the tax can not 
be raised by special taxation, nor can the rate so prescribed be exceeded. 

4. Same — -for local improvements. A grant of power to a city to impose 
a special tax, or a special assessment for local improvements, confers no 
power to accomplish the same purpose by a general tax. The power must be 
strictly pursued when called into exercise. 

5. The city of Quincy having power, under its charter as amended, to levy 
a tax, not exceeding fifty cents on the $100 valuation of taxable property, to 
pay indebtedness and to meet current expenses, and a sum not exceeding 
twenty-eight cents on the $100 like valuation, as a gas tax, can not, on failure 
to levy the latter tax, have the amount thereof levied and collected under the 



344 Webster v. The People ex rel. [March 

Brief for the Appellant. 

former tax, so as to make it exceed fifty cents on the $100 valuation. All 
taxes authorized for specified purposes must, when levied, be for the pur- 
pose named, and not for some other. 

6. Same — alteration of warrant. "Where a city levies a tax in excess of its 
power, and after the warrant comes into the hands of the collector, directs 
him to collect only a certain rate per cent, and he computes the same as to 
each item of tax extended, and writes the amount to be collected in red ink 
over each amount of tax, this will be no alteration of the warrant, so as to 
prevent him from completing the collection of so much of the taxes as is legal. 
Like a sheriff, he may complete the execution of the warrant after it becomes 
inoperative as a process. 

Appeal from the County Court of Adams county; the 
Hon. B. F. Berrian, Judge, presiding. 

Messrs. Sibley, Carter & Govert, for the appellant : 

The power of taxation conferred on a municipal corpora- 
tion, must be strictly construed. Burroughs on Taxation, 
372; Sharp v. Spice, 4 Hill, 76; Dillon on Mun. Corp. sees. 
605, 607. 

The city of Quincy, by sec. 4 of the act to amend its char- 
ter (Laws 1863, p. 172,) was authorized to levy, annually, 
taxes on the $100 valuation, not to exceed twenty-five cents, 
for the support of schools; a tax not to exceed twenty-eight 
cents, for gas to light the city, and a tax not exceeding fifty 
cents, to pay the debts of the city and to meet current ex- 
penses, making $1.03 on the $100 valuation of taxable 
property for any and all purposes. Binhert v. Jansen et al. 
94 111. 283. 

The city authorities for the year 1879 certified to the 
county clerk a levy as follows : Forty-seven cents on each 
$100 valuation, for school purposes, $1.36 on such valuation 
to pay the debts and current expenses of the city, and 
twenty-one cents for streets and alleys. Afterwards, by order 
of the council, the general city tax was reduced to fifty-seven 
cents, so as to make the whole tax to be collected $2.04 on 
the $100 valuation. 



1881.] Webster v. The People ex ret. 345 

Brief for the Appellee. 

The validity of the school and so much of the general 
city tax as does not exceed fifty cents, is not questioned. 
But the objections are confined to the street and alley tax, 
and seven cents "above that allowed by law to be raised to 
pay the debts and expenses of the city, the other taxes hav- 
ing been paid. 

The tax levied for streets and alleys can not be sustained 
as a gas tax, which was not levied. A tax levied and col- 
lected for a distinct object, can not be appropriated for a 
different purpose, except where a surplus remains after the 
object of the levy has been accomplished. Fuller v. Heath, 89 
111. 296. 

The alteration made by the collector as to the amount of 
the taxes extended ought certainly to destroy the validity of 
the tax carried out in that column. It is the alteration of 
process directed to a ministerial officer to execute, and he is 
not permitted to alter or amend it. 

Mr. James E. Purnell, city attorney of Quincy, and 
Messrs. Marsh & McFadon, for the appellee, contended 
that, as no question involving the validity of a statute arises 
in this case, and as no State revenue was involved, but only 
a city tax, their motion to dismiss the appeal ought to be 
allowed. 

The memoranda made by the collector, of the amount of 
the taxes the city was willing to receive in full is not an 
alteration of the books, and can not defeat the collection of 
the entire tax. Besides, this objection was not made in the 
county court, and is now too late. Chiniquy v. People, 78 111. 
577; Jerome v. Chicago, 62 id. 285. 

The city had the right to control the collection of its own 
tax, and to remit illegal portions. 

We claim that the city may rely upon any law in force at 
the time of the levy to support the tax in controversy. The 
city had a right to have the excess of the levy for general 
city purposes collected for the purpose of a gas tax. 



346 "Webster v. The People ex rel. [March 

Opinion of the Court. 

The lighting with gas was a local improvement confined to 
a particular locality, and the tax in question may be sus- 
tained as a special tax or assessment. See Cooley on Taxa- 
tion, 415 and 418; Shaw v. Dennis, 5 Gilm. 415; Elston v. 
Chicago, 40 111. 518. 

The collector's report of delinquent lands makes a prima 
facie case, and if there be any valid objections, it is for 
the land owner to make them appear. Buck v. People, 78 
111. 561; Chiniquy v. People, id. 570; Mix v. People, 80 id. 
312; Pike v. People, 84 id. 81. 

Mr. Justice Walker delivered the opinion of the Court: 

At the May term, 1880, of the county court of Adams 
county, the collector applied for a judgment against lands 
and lots in the city of Quincy, for delinquent taxes. Ap- 
pellant had paid his State, county and city school tax, and so 
far as relates to his property, the only dispute is as to taxes 
due the city of Quincy for the year 1879, and previous years. 
On the filing of the collector's report appellant filed objections, 
which, after a hearing, were overruled and judgment ren- 
dered for the sale of the lots for the payment of the taxes. 

We shall dispose of a preliminary question before pro- 
ceeding to the discussion of the objections urged for a re- 
versal of the judgment. 

A motion was made to dismiss the appeal in this case 
because it is claimed that it does not lie to this court from the 
county court, but that the appeal should have been taken to 
the Appellate Court. The eighty-eighth section of the Prac- 
tice act, as amended by the act of 1879, (Sess. Laws p. 222), 
'among other things, provides that appeals to and writs of error 
from this court may be prosecuted to the trial courts: "In 
all cases relating to revenue, or in which the State is inter- 
ested as a party or otherwise/' The city contends that the 
true meaning of this clause embraces State revenue and not 



1881.] Webster v. The People ex rel. 347 

Opinion of the Court, 

city taxes. To so hold would be to give a too restricted 
meaning to the term " revenue." 

The term was not used in its most extended meaning, but to 
embrace public revenue, whether State or municipal, — to 
embrace all taxes and assessments imposed by public author- 
ity. It would not embrace suits for the recovery of fines 
and forfeitures or suits on contracts or other dues to th.e city, 
etc. We are of opinion that the appeal to this court was 
properly taken. 

All power rightfully exercised by corporate bodies, 
whether public or private, must be conferred by the govern- 
ment, either in express terms or by necessary and clear impli- 
cation. For every corporate act, authority for the same must 
be found in a grant or requirement of a statute of the legis- 
lature of the State. Here the city claims the power by grant 
in its charter, but this is denied by appellant. The power 
must not only thus exist, but it must be called into exercise 
by the proper functionaries. 

Then the question presents itself whether the city possesses 
the power to levy these taxes, and if so, has it exercised it in 
the mode contemplated by the charter. The fourth section 
of the act to amend the charter (Session Laws, 1863, p. 172), 
authorizes the city to annually levy taxes for the support of 
schools, not to exceed twenty-five cents on the $100 of val- 
uation of property for taxation ; not exceeding twenty-eight 
cents on the $100 of such valuation, for gas to light the citv, 
and not exceeding fifty cents on the $100, of such valuation, to 
pay the debts of the city and to meet its expenses. The city, 
for the taxes for the year 1879, levied forty— seven cents on 
the $100 valuation, for school purposes; for streets twenty- 
one cents on the $100 of valuation; for the payment of city 
indebtedness and expenses, $1.36 on the $100 of valuation. 
There was no sum returned to the county clerk to be extend- 
ed as a tax for gas to light the city. These several taxes 
were extended in separate columns on the collector's warrant, 
as indicated by the order levying these taxes for these several 



348 Webster v. The People ex rel. [March 

Opinion of the Court. 

purposes. The column containing the school tax was headed 
" school tax;" that of streets was headed " street and alley 
tax," and that for payment of debt and to meet expenses was 
headed " city tax ex. school and street and alley tax." Thus 
it is seen, that the taxes were so levied and extended on the 
collector's warrant. 

After the tax warrant was placed in the hands of the col- 
lector for collection of the taxes thus levied and extended, 
the decision in the case of Binkert v. Jansen, 94 111. 283, was 
announced, holding that under this amendment to the city 
charter it could not levy a tax on real and personal property 
for city purposes of more than $1.03, on the $100 of valua- 
tion. The city council thereupon, by resolution, directed the 
collector to collect of the city levy, exclusive of the school 
tax, but seventy-eight cents on each $100 of valuation. He 
thereupon caused a computation to be made of the amount 
chargeable to each person and lot or tract of land at that 
rate, and placed the amount so ascertained in red ink over 
the amounts extended by the clerk on the tax warrant, as in- 
dicating the amount to be collected. And in his return of 
the delinquent list he asked a judgment only for that amount. 

It was objected in the court below, that the twenty-one 
cents levied for streets and alleys is unauthorized and void, 
and the objection is here urged for a reversal. 

In the case of BinJcert v. Jansen, supra, it was held the city 
had Y no power to levy a specific street and alley tax on real 
and personal property, and that case is decisive of the levy 
of such a tax in this case. 

It is, however, urged that the city is empowered to levy a 
special tax for local improvements. Conceding this to be 
true, when such a tax is levied, to be constitutional, it must 
be levied on contiguous property, whilst this tax is levied on 
all of the taxable property in the city. It has more of the 
elements of a special tax, and can not therefore be sustained 
as such. Nor can it be held to be a special assessment for 
the improvement of streets. None of the steps requisite to 



1881.] Webster v. The People ex rel. 349 

Opinion of the Court. 

a special tax or a special assessment have been observed in 
its imposition, nor is its operation local or special, as it ap- 
plies to and operates, in its levy and collection, on all taxa- 
ble property in the city. 

It is urged that twenty-eight of this seventy-eight cents on 
the $100 valuation may and should be sustained as a gas tax, 
as that amount is authorized to be levied for that purpose. 
This might and would no doubt be true if that amount had 
been so levied. But no tax was levied for that purpose, as 
contemplated by the statute. It authorizes such a levy for 
that specific purpose. Having given the power to levy such 
a tax specifically, the city has no power to levy such a tax 
under another name or to include it in the levy of a tax for 
another and different purpose. It could not be embraced in 
the tax for the payment of the city debt and expenses, be- 
cause the statute has expressly limited that to fifty cents on 
the $100 of valuation, and to add this twenty-eight cents to 
that tax would exceed the fifty cents, the extreme limit 
authorized for that purpose. The city had, no doubt, the 
power to levy a gas tax to that amount, but it has failed to exer- 
cise the power, and it must remain dormant until called into 
exercise by the functionaries of the city. Having a power not 
exercised does not warrant the exercise of another and un- 
authorized power to an equal extent, for another and wholly 
different purpose. Because power is given to levy a gas tax, 
that does not authorize the levy of a street tax because the 
city may fail to levy a gas tax. All taxes authorized for 
specified purposes must, when levied, be for the purpose 
named, and not for some other purpose. 

"When the statute prescribes a mode and purpose of taxa- 
tion, it must be pursued, and no other mode or purpose can 
be substituted by officials exercising the power. When a 
general tax is authorized, and the rate or per cent is pre- 
scribed, the tax can not be raised by special taxation, nor can 
the rate be exceeded. So, a grant of power to impose 
a special tax or a special assessment for local improvements, 



350 C. & A. R. R. Co. v. The People ex rel [March 

Syllabus. 

confers no power to accomplish the purpose by general tax. 
The power must be strictly pursued, when called into exer- 
cise. 

If an officer has the power to so alter or mutilate a writ 
directed to him to execute, as to render it void, we are clearly 
of opinion that the collector in this case made no such altera- 
tion of the tax warrant as to render it void and inoperative. 
He still bad the undoubted power to proceed until it was fully 
executed. An officer may, if he begins to execute afi. fa. in 
its lifetime, complete the execution after it becomes inopera- 
tive as a writ. In such a case the power continues after the 
writ expires. But here, there was no alteration so as to 
change its contents or purport. The collector but made mem- 
oranda on the warrant for convenience in collecting the 
taxes. We perceive no force in this objection. 

But as all of the judgment above fifty cents on the $100 
valuation is erroneous, it is reversed and the cause remanded. 

Judgment reversed. 



The Chicago and Alton Raileoad Company 
v. 
The People ex rel. Joseph Dennison, Collector, etc. 

Filed at Springfield March 21, 1881. 

1. Taxes — assessment of property must be made by the proper persons designated 
by law. Under section 1, art. 9, of the constitution, an assessment for 
taxation must be made by the person or persons to be elected or appointed 
in the manner the General Assembly shall direct, and not otherwise. There- 
fore, an assessment made by a person or persons not authorized by law is 
void, and no judgment can be rendered for the taxes levied on such assess- 
ment. 

2. Same — State Board must assess railroad track and rolling stock of rail- 
way companies. Under the Revenue law, the exclusive power to assess rail- 
road track and rolling stock of railway companies, is conferred upon the 



1881.] C. & A. E. R. Co. v. The People ex rel 351 

Brief for the Plaintiff in Error. 

State Board of Equalization, and therefore an assessment of property used as 
railroad track, by the local township assessor, is void. 

3. Same — xohat is railroad track within the meaning of the Revenue law. Land 
held and in actual use by a railroad company for side-tracks, switches and 
turnouts must be regarded, within the meaning of the Revenue law, as a part 
of the right of way of the company notwithstanding it may have machine 
shops, depots, round-houses, and other superstructures thereon, necessary for 
the successful use of the road. 

4. In this case two lots of a railway company contained about 32 acres after 
deducting a strip 100 feet wide running through them occupied as the main 
track. The 32 acres were covered by tracks used all the time for the pui:pose 
of running cars and engines over them, and for switching cars, making up 
trains, loading and unloading cars, and for various other purposes in the 
transaction of the company's business. It was also used for car shops, 
machine shops, blacksmith shops, foundry, round-houses, freight depot, stock 
yards, paint shops, etc.: Held, that the whole of the lots constituted a part of 
the company's right of way, and its railroad track, and as such could not 
legally be assessed by the local township assessors. But land can not be re- 
garded as right of way merely because one or even two side tracks may be 
constructed upon it. The land must be, in fact, appropriated for the purpose 
of the right of way. 

Writ of Error to the County Court of McLean county ; 
the Hon. Reuben M. Benjamin, Judge, presiding. 

Messrs. Williams, Burr & Capen, for the plaintiff in 
error : 

1. Property can only be assessed by some competent person 
or number of persons designated by law to perform that duty, 
and any attempted assessment by any one else is null and 
void. Const. 1870, art. 4, sec. 1; Bureau Co. v. C, B. & 
Q. R. R. Co. 44 111. 229; Cooley on Tax. 184. 

2. A double assessment of the same property is void. Const. 
1870, art. 9, sec. 1; People v. Bradley, 39 111. 130; C. & N. 
W. R. R. Co. v. Miller, 72 id. 144. 

3. All the property in controversy is denominated in the 
statute " railroad track." Sees. 41, 42 and 43, Revenue act; 
C, B. &Q. R. R. Co. v. Wilson, 17 111. 123; Low v. G. & C. 
U. R. R. Co. 18 id. 324 ; C. & N. W. R. R. Co. v. Miller, 72 
id. 144; C. } R. I. & P. R. R. Co. v. People, 4 Bradw. 468. 



352 C. & A. R. E. Co. v. The People ex rel. [March 

Brief for Plaintiff in Error. 

4. The property denominated " railroad track" by the 
statute is only assessable by the State Board of Equalization. 
Sees. 48, 50, 109, Revenue act, Rev. Stat. 1874. 

5. The State Board of Equalization did, in fact, assess 
said lots 1 and 2 as railroad track, and such assessments have 
been paid, as shown by the evidence. 

6. The assessment of the property is void for uncertainty, 
as it can not be located. Shacldeford v. Bailey, 35 111. 387; 
Loflln v. Herrington, 16 id. 301; Hughes v. Streeter, 24 id. 
647. 

7. No judgment can be rendered against property for 
taxes unless the description is such that it can be located. 
Cooley on Tax. 282, and cases cited; Blackwell on Tax 
Titles, 124; Fitch v. Pinchard, 4 Scam. 69; Fowler v. People, 
93 111. 116. 

8. If land is listed in one class and assessed in another, 
the assessment is void. Tibbetts v. Job, 11 111. 453; Graves 
v. Bruen, id. 431. 

9. A decree of court of competent jurisdiction is binding 
on the parties till reversed. 

Mr. C. Beckwith, also for the plaintiff in error: 

1. The property assessed by the local assessors was held by 
the railroad company for its right of way, and was therefore 
embraced in the class of property denominated by the Reve- 
nue law as "railroad track," and not assessable by town as- 
sessors. Rev. law of 1872, sees. 40-50. 

2. As to the right of the company to acquire lands for 
right of way, and hold the same, except on a direct proceed- 
ing on the part of the State for an abuse of its powers, see 
Sheewaller v. Pirnier, 55 Mo. 258 ; Natonia Water and Min- 
ing Co. v. Clarhin, 14 Cal. 544; DeCamp v. Dobbins, 29 N, J. 
Eq. 36 ; Speare v. Crawford, 14 Wend. 20; C, 31. & S. Co. 
v. V., H. & W. Co. 1 Sawyer, 470 ; Claremont Bridge Co. v. 
Eoyce, 42 Vt. 730; Coiocll v. Springs Co. 11 Otto (101 U. S.), 
55. 



1881.] C. & A. E. E. Co. v. The People ex rel. 353 

Brief for the Defendants in Error. 

Mr. Robert B. Porter, and Mr. J. W. Fifer, for the 
defendants in error : 

1. The description is sufficient. It excepts the strip used 
as "railroad track." The exception in a deed need not be as 
exactly described as the land conveyed. Lake Shore and 
Mich. South. B. B. Co. v. P., Ft. W. & C. B. B. Co. 71 111. 
38 ; Williams v. Warren, 21 id. 541 ; Boiuman v. Wettig, 39 
id. 416. 

2. The land in controversy is "real estate other than 
' railroad track/" and only assessable by the local assessors. 
Eev. law, sees. 46, 47, 49, 109; C, B. & Q. B. B. Co. v. Pad- 
dock, 75 111. 616. 

3. The court below found this to be "real estate other 
than 'railroad track ;'" and, that being a finding of fact, this 
court will not disturb it unless it is manifestly against the 
great weight of evidence. This proposition we regard so well 
settled by the decisions of this court as to need no citation of 
authorities. 

4. The real question at issue, the question that is of vital 
interest, both to the public and the plaintiff in error, is, what 
is the property in controversy? " Eailroad track," or "real 
estate other than 'railroad track ? ? " If the first, then mani- 
festly the State Board is the only proper assessor. If the 
second, then the local assessors are the only proper legal 
authorities to make the assessment. See sees. 46-48, 50, 109, 
Eevenue law; Porter v. Bailroad Co. 76 111. 561; Life Lns, 
Co. v. Pollack, 75 id. 292; C, B. & Q. B. B. Co. v. Cole, id. 
591; Pacific Hotel v. Lieb, 83 id. 602; State Bailroad Tax 
Cases, 92 U. S. (2 Otto), 575. 

5. These thirty-two acres have been found by the court 
below* to be "real estate other than 'railroad track/" The 
opportunities of that court for determining were good ; and 
an inspection of the map of the plaintiff in error will demon- 
strate to this court that there is no reason for disturbing 
that finding. Turnouts are only means of access to the build- 

23—98 III. 



354 C. & A. E. K. Co. v. The People ex rel [March 

Opinion of the Court. 

ings, and would not be used if it were more economical to 
transport material by other means. The value of the side 
tracks and turnouts was not included in these assessments. 

That the finding should not be disturbed unless manifestly 
against the weight of evidence needs only to be suggested to 
the court; but we risk citing a few of the many cases in sup- 
port of the proposition. Chicago City Railway Co. v. Young, 
62 111. 238; Bourne v. Stout, id. 261; American Express Co, 
v. Bruce, 50 id. 201; Malburn v. Schreiner, 49 id. 69; Powell 
v. Feeley, id. 143; Lalor v. Scanlan, id. 152; Baker v. Robin- 
son, id. 299. 

Mr. Justice Craig delivered the opinion of the Court : 

This was an application by the collector of McLean county 
for judgment against certain lands, for taxes, described as 
blocks one and two of the Chicago and Alton Railroad Com- 
pany's survey of its grounds in the city of Bloomington, except 
a strip of land one hundred feet in width extending through 
blocks one and two, on which strip the company's main line 
is located. The taxes are claimed to be due for the years 
1873 to 1879 inclusive. Lot one lies in Bloomington town- 
ship and lot two in Normal township. Both tracts, however, 
are within the city of Bloomington. The taxes for which 
application for judgment was made were assessed by the town- 
ship assessors of the respective townships. 

The principal objection urged by the Chicago and Alton 
Railroad Company to the application for judgment in the county 
court, and the only one which we shall consider, is, that the 
property was land held by the railroad company for its right 
of way, and embraced in the class of property denominated 
by the Revenue law as " railroad track," and, therefore, not 
assessable by local assessors. If the property in question be- 
longs to that class known in the Revenue law as "railroad 
track," then it was assessable by the State Board of Equali- 
zation, and the township assessors had no power to make the 



1881.] C. & A. R. R. Co. v. The People ex rel 355 

Opinion of the Court. 

assessment, and the judgment based on such assessment is 
erroneous. If, on the other hand, the property is real estate 
belonging to the railroad company, other than railroad track, 
then the assessment by the township assessors was valid and 
the judgment rendered regular. 

Under sec. 1, art. 9, of the constitution, an assessment must 
be made by the person or persons to be elected or appointed 
in such manner as the General Assembly shall direct, and not 
otherwise. • It is therefore apparent that unless the assess- 
ment here involved was made by the person or persons 
authorized by law it is void. 

Section 41 of the Revenue law, Rev. Stat. 1874, p. 865, 
requires that all railroad corporations owning, operating or 
constructing a railroad in this State, " shall, in the month of 
May of the year 1873, and at the same time in each year 
thereafter, when required, make out and file with the county 
clerks of the respective counties in which the railroad may 
be located, a statement or schedule showing the property 
held for right of way, and the length of the main and all 
side and second tracks and turnouts in such county, and in 
each city, town and village in the county, through or into 
which the road may run, and describing each tract of land, 
other than a city, town or village lot, through which the 
road may run, in accordance with the United States surveys, 
giving the width and length of the strip of land held in each 
tract, and the number of acres thereof. They shall also state 
the value of improvements and stations located on the right 
of way." 

Section 48 of the same statute requires the railroad company 
at the same time to return a schedule to the Auditor of Pub- 
lic Accounts, of the property denominated "railroad track/' 
giving the length of the main and side or second tracks and 
turnouts, etc. Also showing the rolling stock, etc. 

Section 50 requires the Auditor annually, on the meeting 
of the State Board of Equalization, to lay before the board 
the statements and schedule required to be returned to hrm 



356 C. & A. R. R. Co. v. The People ex rel. [March 

Opinion of the Court. 

and makes it the duty of the board to assess the property 
named in the schedule. 

It will be observed, that by the terms of section 41 the- 
railroad company is required to return to the county clerk 
and Auditor a statement or schedule showing the property 
held for right of way. This is followed by section 42, which 
undertakes to determine what property is know by the term 
railroad track, as follows: 

" § 42. Such right of way, including the superstructures 
of main, side or second track and turnouts, and the station 
and improvements of the railroad company on such right of 
way, shall be held to be real estate for the purposes of taxa- 
tion, and denominated 'railroad track,' and shall be so 
listed and valued ; and shall be described in the assessment 
thereof as a strip of land extending on each side of such rail- 
road track, and embracing the same, together with all the 
stations and improvements thereon, commencing at a point 
where such railroad track crosses the boundary line in enter- 
ing the county, city, town or village, and extending to the 
point where such track crosses the boundary line leaving 
such county, city, town or village." 

What was intended by the enactment of this section of the 
statute by the use of the words here employed, "such right of 
way?" Were these words intended to mean merely the strip 
of land a certain number of feet wide, upon which the rail- 
road company had constructed its main track, or did the 
framers of the section intend to embrace not only the main 
line of the road but all side tracks, turnouts and switches 
which are connected with the main track and which are in 
actual use by the railroad company as a common carrier? 

We can see no reason why the term "right of way" 
should be confined to the land over which the main track of 
a railroad should be constructed. The land upon which a 
side track, a switch, or a turnout is built and in actual use 
by the company in the business for which it was organized, 
for all practical purposes is as much held for right of way as 



1881.] C. & A. R. E. Co. v. The People ex rel. 357 

Opinion of the Court. 

is the land upon which the main track is constructed. In 
the operation of a railroad it is necessary that trains should 
pass each other, and hence the necessity of turnouts, switches 
and side tracks. In the loading of cars, transfer of cars, the 
making up of trains, and in innumerable other instances that 
might be named, in the prosecution of its business as a com- 
mon carrier, side tracks, switches and turnouts are as indis- 
pensable to a proper transaction of its business as the main 
track itself. We are, therefore, of the opinion that the land 
held and in actual use by a railroad company for side tracks, 
switches and turnouts, must be regarded, within the meaning 
of the Revenue law, as a part of the right of way of the 
company. It is used in the transportation of freight, and 
also for the purpose of carrying passengers, alike with the 
land upon which the main track is constructed, and upon 
what principle the land upon which the main track is laid 
can be held to be right of way, and the land over which a 
side track, switch, or a turnout passes can be termed some- 
thing else, we are at a loss to understand. 

Again, if the construction contended for by defendants in 
error be the correct one, the land upon which the side tracks 
and turnouts are constructed will have to be assessed by one 
set of assessors and the superstructures thereon by another 
board of assessors. Section 42, in express terms, requires the 
superstructures of the second track and turnouts, and the 
station and improvement's on right of way shall be denomi- 
nated railroad track, and railroad track can only be assessed 
by the State Board of Equalization. It is unreasonable to 
believe that the legislature ever contemplated that land upon 
which side tracks, turnouts and switches are constructed, should 
be assessed by township assessors, and the improvements 
thereon by another and distinct board of assessors. Such a 
practice would create confusion, and a just and proper assess- 
ment could rarely, if ever, be made. 

Section 43 seems to have an important bearing on the 
question under consideration. It provides : 



358 C. & A. E. E. Co. v. The People ex ret [March 

Opinion of the Court. 

" The value of the ' railroad track ' shall be listed and taxed 
in the several counties, towns, villages, districts and cities, in 
the proportion that the length of the main track in such 
county, town, village, district or city bears to the whole 
length of the road in this State, except the value of the side 
or second track, and all turnouts, and all station houses, 
depots, machine shops, or other buildings belonging to the 
road, which shall be taxed in the county, town, village, dis- 
trict or city in which the same are located." 

If railroad track, which, under the Eevenue law, is the 
right of way, did not embrace land occupied by side or second 
track and turnouts, why provide for the exception contained 
in the section ? The very fact that the exception was inserted 
would seem to indicate that side or second tracks and turn- 
outs were a part and parcel of what is denominated in the 
Eevenue law as railroad track. 

It will now be necessary to examine the evidence and 
ascertain whether lots one and two are a part of the right of 
way in use by the railroad company. These two lots, as 
appears from the evidence introduced on the application for 
judgment, contain about thirty-two acres after deducting a 
strip of land one hundred feet wide running through the two 
lots, occupied by the main track. The thirty-two acres are 
covered by tracks used all the time for the purpose of run- 
ning cars and engines over the'm, and for switching cars, 
making up trains, loading and unloading cars, and for various 
other purposes in the transaction of the company's business. 
The ground is also used for car shops, machine shops, black- 
smith shops, foundry, round house, freight depot, stock yards, 
paint shops, etc. Trains run over the whole of it, from one 
length to the other, every day, except Sunday, and some on 
that day. These tracks were constructed for the purpose of 
operating the company's road under its charter as a common 
carrier of persons and property. The company's principal 
shops are here for building and repairing cars, machinery 
and engines. They use the tracks also for switching in 



1881.] C. & A. R. E. Co. v. The People ex rel. 359 

Opinion of the Court. 

making up trains, putting in cars for temporary use, and for 

the general business of the road. One witness, on his cross- 
es j 

examination, said : " We need all the ground and have needed 
it during the past seven years, for the purposes of transpor- 
tation, movement of trains, proper facilities of manufacturing 
and repairing its rolling stock, affording shelter for its 
engines and tenders," etc. 

From the evidence, it is manifest that the railroad com- 
pany has constructed tracks around the entire thirty-two 
acres of land; that it is covered with side tracks, switches 
and turnouts connected with its main track, and in con- 
stant use by the railroad company in the prosecution of 
its legitimate business as a common carrier, for which it 
was organized under a charter granted by the State. 
Buildings have been erected on this land by the com- 
pany, termed machine shops, car shops, round houses, etc., 
where repairs are made for the company's rolling stock; but 
this use does not change the character of the manner in 
which the land is held. It is still held as right of way, not- 
withstanding such buildings. 

These shops are, doubtless, necessary, to insure a success- 
ful operation of the railroad ; but whether they are or 
not is not important, as the Revenue law anticipated 
that such structures would be erected on the company's 
right of way, and made express provision, when that was 
done, that they should form a -part of the right of way 
and be taxed as such. This is apparent from seotion 42, 
which declares that the right of way, including superstruc- 
tures of main, side or second track, and turnouts, and the 
station and improvements of the railroad company on such 
rigid of way, shall be real estate for the purpose of taxation, 
and denominated " railroad .track." The fact, then, that the 
company has erected and is using shops on this land for 
the purpose of right of way, does not, in the least, militate 
against the view that the land is held for right of way. 



360 C. & A. E. R. Co. v. The People ex rel. [March 

Opinion of the Court. 

Inasmuch as the exclusive power to assess railroad track 
and rolling stock has been conferred on the State Board of 
Equalization/ there seems to be no reason whatever why the 
power of assessment of property situated as is the property in 
controversy, should be conferred on the township assessors. 
The State Board has many facilities for making a correct and 
just assessment which the township assessor can not have. 
Under section 109 it has the power to examine persons and 
papers where it may be necessary to reach a correct result. 
The locality where the property is situated gains nothing by 
an assessment made by the local assessor. Whether the assess- 
ment is made by the township assessor, or by the State Board 
under section 43 of the Revenue act, the value of side track 
and turnouts, station houses, depots, machine shops, or other 
buildings belonging to the road, shall be taxed in the county, 
town, village, district or city in which the same are located, 
thus giving the locality where the property is situated the 
benefit of the taxes to be collected from such property, 
whether it is assessed by the local assessors or by the State 
Board of Equalization. 

It is urged, however, that if the construction claimed by 
plaintiff in error is placed on the statute, then in every case 
where a railroad company owns a coal mine, or stock yards, 
and constructs a side track to either, such tract of land, 
although it may contain many acres, can not be assessed by 
the township assessors, but must be regarded as right of way. 
We do not understand that such a result will follow. A 
tract of land can not be regarded right of way merely because 
one or even two or more side tracks maybe constructed upon 
or over it, but the land must be appropriated, as is the land 
in question, to that purpose. The land here is covered with 
numerous tracks, and is all substantially appropriated for the 
purpose of right of way, and when such is the case it forms 
a part of and becomes right of way. If we are correct in 
this view it follows that the assessment by the local assessors 



1881.] Gorman v. Gorman et ah 361 

Syllabus. Brief for Plaintiff in Error. 

was void, the judgment of the county court was erroneous, 

and it will be reversed. 

Judgment reversed. 

Walker and Scholfield, JJ. : We concur in reversing 
the judgment, but not in all that is said in defining what is 
here right of way. 



Thomas Gorman 

v. 

Anthony Gorman et al. 

Filed at Springfield March 21, 1881. 

Conveyance — sufficiency of proof of delivery. On bill to supply a lost deed 
for land, the proof clearly showed the signing and acknowledgment of a 
deed for the land by a brother, who afterwards died, to the complainant, but the 
proof of its delivery was not satisfactory, that fact being in issue by the plead- 
ings, and the person drawing the deed and taking its acknowledgment testified 
that he delivered it to the grantor and had no knowledge of its ever being deliv- 
ered to the grantee. A boy who worked for the grantor testified that on their 
return home after the execution and acknowledgment, the grantor called the 
complainant's attention to the deed and delivered it to him: The deed was 
never recorded or taken into the grantee's care for safe keeping, but was left 
with other papers of the grantor in a drawer in his private room. One of the 
defendants, who visited the grantor shortly before his death, testified that the 
deceased took the deed from his drawer and destroyed it. The evidence was, 
that the grantee was not to pay anything for the land: Held, that the evi- 
dence was not sufficient that the deed was ever delivered, and that the grantor 
had the right to change his intention to make a gift of the land at any time 
before delivery of the deed, and to destroy the same. 

Writ of Error to the Circuit Court of Adams county ; 
the Hon. John H. Williams, Judge, presiding. 

Messrs. A. A. & J. H. Eichardson, for the plaintiff in 
error : 

1. The Supreme Court has jurisdiction of this appeal 
from the circuit court directly. Laws of 1877, p. 77, sec. 8; 



362 Gorman v. Gorman et aL [March 



Brief for Plaintiff in Error. 



Bennett et al. v. Waller et al. 23 111. 177; King v. Admr. of 
Gilson, 32 id. 354; Rockwell et aL v. Servant et ux. 54 id. 
253. 

2. The delivery of the deed, properly executed, passed 
the title to the lands. Bryan et aL v. Wash et al. 2 Gilm. 
565; Bennett et al. v. Waller et al. supra; Rivard et al. v. 
Walker et al. 39 111. 414; Duncan v. Wickliffe, 4 Scam. 452. 

3. Granting this deed to have been a voluntary one, the 
presumption of law is in favor of the delivery, and the bur- 
den of proof is on the grantor to show clearly there was no 
delivery. Bryan et al. v. Wash et al. supra; Souverbye v. 
Arden, 1 Johns. Ch. 256; Reed et al.v. Douthit et al. 62 111. 
352. 

4. The destruction or surrender of a deed subsequent to 
its delivery does not re-vest the title to the lands therein con- 
veyed in the grantor. Duncan v. Wickliffe, supra; Bryan 
et al. v. Wash et al. supra; Bennett et al. v. Waller et al. 
supra; Parsons v. Parsons, 45 Mo. 268; Tibeau v. Tibeau, 
19 id. 81; Alexander v. Hickok, 34 id. 500. 

5. The declarations or admissions of a grantor, made 
after the grant, are not admissible in evidence to prejudice 
the rights of the grantee. Bryan et al. v. Wash et al. supra, 
and cases there cited; Rust et al. v. Mansfield et al. 25 III. 
338; Myers, impl. etc. v. Kinzie, 26 id. 37; Simpkins v. 
Rogers, 15 id. 398; Gridleyv. Bingham, 51 id. 155, and cases 
there cited. 

6. Granting the deed to have been a voluntary one, the 
title passed thereby to grantee, regardless of the considera- 
tion paid. Fetrow v. Merriwether, 53 111. 278; Reed et al. w 
Douthit et al. supra; Bryan et al. v. Wash et al. supra; Mas- 
terson et al. v. Cheek et al. 23 111. 76. 

7. If the deed was delivered, as the witness Clark swears 
it Avas, its custody by the grantor subsequently could not in- 
validate or defeat it. Reed et al. v. Douthit et aL supra, and 
cases there cited ; Parsons v. Parsons, supra. 



1881.] Gorman v. Gorman et al. 363 

Brief for Defendants in Error. Opinion of the Court. 

Mr. J. C. Broady, for the defendants in error: 

After contending that the evidence was not sufficient to 
show a delivery of the deed, made the following points: 

To render a deed operative to pass title, in addition to 
signing, sealing and acknowledging, delivery and acceptance 
are essential to its validity. Wiggins v. Lush, 12 III. 135; 
Herbert v. Herbert, Breese, 282; Ferguson v. Miles, 3 Gilm. 
363; Skinner et al. v. Baker et al. 79 111. 499. 

A deed of gift, not delivered, destroyed by the donor, is 
of no effect, though there be proof of declarations of the 
donor, during the existence of the deed, recognizing the 
property in the donee. Beid v. Butt, 25 Ga. 28. 

Mr. Justice Scott delivered the opinion of the Court: 

This bill was brought by Thomas Gorman, one of the heirs 
of John Gorman, against the other heirs of the deceased, to 
obtain a deed for the land described in the bill, to supply one 
made by deceased to complainant, and which it is said was 
lost or destroyed without having been recorded. 

It is alleged that on or about the 21st day of October, 
1878, John Gorman, since deceased, "granted, bargained, 
sold and conveyed, by good and sufficient warranty deed, for 
a valuable consideration," the premises in controversy to 
complainant; that the deed so made was unrecorded, and has 
since been lost or destroyed; that John Gorman died Febru- 
ary 24, 1879, leaving no widow or children, or descendants 
of any child or children, and that complainant and defend- 
ants are his sole surviving heirs at law. Answering, defend- 
ants admit deceased did cause a deed for the premises to 
complainant to be prepared, and also that he signed and 
acknowledged the same in due form, and that he took it 
home with him, but deny that he ever delivered it to com- 
plainant. The further allegation of the bill, that deceased 
"granted, bargained, sold and conveyed, by good and suffi- 
cient warranty deed," the lands to complainant, is expressly 



364 Gorman v. Gorman et al. [March 

Opinion of the Court. 

denied. A replication was filed to the answer of defendants, 
and the court to whom the cause was submitted on the proofs 
taken before the master in chancery, found the issues for 
defendants and dismissed the bill. Complainant brings the 
case to this court on error. 

That a deed to convey the land to complainant was pre- 
pared, and it was signed and acknowledged by deceased 
before a proper officer, admits of no doubt; but the pleadings 
make the distinct issue such deed was never delivered to the 
grantee named, and upon that question the evidence is by no 
means satisfactory. The scrivener who prepared the deed, 
and who was the officer before whom the grantor acknowl- 
edged it, states he delivered the deed to the grantor, and has 
no knowledge whether it was ever delivered to the grantee. 
The only witness whose testimony can be considered, that 
testifies as to the delivery of the deed to the grantee, is a boy 
that worked for the grantor at the time. His testimony is, 
that on their return home in the evening after the making 
of the deed, the grantor called complainant's attention to the 
deed and delivered it to him. It is singular, if the deed was 
delivered to complainant, that it was not recorded or taken 
into his own care for safe keeping. It seems to have been 
left, with other private papers belonging to the grantor, in a 
drawer in his private room. It is quite certain complainant 
did not have the exclusive care of it. Anthony Gorman, one 
of defendants, who visited deceased shortly before his death, 
says deceased himself took the deed from his drawer where 
he kept his private papers, and destroyed it. It is alleged 
in the bill this witness had free access to everything in the 
residence during the time of his visit, and the intimation is 
he destroyed it. Be that as it may, it is evidence tending 
at least to show the deed was not in the exclusive custody of 
the grantee, but remained with the grantor. 

Treating the transaction as a design on the part of the 
grantor to make a gift of the land to complainant, it was his 
privilege to change that purpose at any time before the deed 



1881.] Gorman v. Gorman it al. ' 365 

Mr. Chief Justice Dickey, dissenting. 

was delivered. The evidence is the grantee was to pay 
nothing for the land. The consideration for the alleged con- 
veyance was services rendered to the grantor, but what those 
services were, or their value, do not appear. The scrivener 
was undoubtedly correct when he said he "considered it a 
gift." There is nothing in all the testimony that shows there 
was " bargain and sale " of this land to complainant. It may 
be deceased changed his purpose, and did not wish to bestow 
the land upon complainant as an act of bounty, and if he 
retained the deed in his possession he could rightfully 
destroy it whenever he chose to do so. 

Considering the attendant circumstances proven, the evi- 
dence as to the delivery of the deed to complainant by the 
grantor is too uncertain and unsatisfactory to warrant the 
relief asked for in the bill, and the decree of the circuit court 
will be affirmed. 

Decree affirmed. 

Dickey, Ch. J. : I can not concur in the conclusion 
reached in this case. John Gorman and his brother Thomas 
were occupying a house together, the house and all the house- 
hold goods being the property of John, and Thomas being a 
laborer for his brother. In this state of affairs John went 
to a justice of the peace and caused him to prepare the deed 
in question, and then and there signed and sealed and 
acknowledged the same, and took it home with the avowed 
purpose of delivering the same to Thomas. A young man 
who was then working for John testifies that he was present 
when the deed was made, and went home with John, and 
when John got home he did deliver the deed to Thomas. 
There is nothing in the record which in my judgment tends 
to contradict the testimony of this witness. The fact, if true, 
that afterwards this deed was in a drawer in a bureau in the 
house where John could take it, seems to me of no signifi- 
cance. What more natural or probable than that Thomas 
would place his deed in that drawer for safe keeping? He 



366 Town of Virden et al. v. Needles et al. [March 

Syllabus. 

was a mere laborer in his brother's service, and it does not 
appear that he had any bureau or other place in his exclusive 
possession in which he could or did keep any papers of his 
own, or that he even had any other paper except this deed. 
I think the delivery is well proved. 

Walker, J. : I concur with the Chief Justice in this 
dissenting opinion. 



The Town of Virden et al, 

v. 

Thomas B. Needles et al 

Filed at Springfield March 21, 1881. 

1. Chancery — personal decree not proper as to persons not served with process. 
Where the bonds and coupons of a municipal corporation issued to a railway- 
company are not under the control of the court, nor their holders personally 
within the jurisdiction of the court, no decree can be entered to enforce the 
surrender or cancellation of such bonds and coupons, on bill filed to enjoin the 
collection of taxes levied for their payment, and to enjoin the payment, over 
of taxes already collected. Notice by publication, to the unknown holders of 
such bonds and coupons, will only enable the court to give effect to the pro- 
ceeding so far as it is in rem. It will not authorize a personal decree against 
such holders. 

2. Where persons who are necessary parties refuse to appear, and the 
court has no power to reach them by its process and compel them to appear, 
the bill must be dismissed as to them. 

3. Same — decree must have a basis in the pleadings. On bill filed to enjoin 
the collection of taxes levied for the payment of municipal bonds and coupons 
thereto attached, and prevent the treasurer from applying taxes, already col- 
lected, to the payment of such bonds and coupons, no decree can be rendered 
directing the paying over of the taxes collected to the municipal authorities 
where the bill contains no such prayer, or where there is no allegation that 
there is any definite amount of such money in the hands of the treasurer. 

4. Taxes — right to have taxes illegally collected paid over to any one other than 
tax-payers. One of several tax-payers who have paid an illegal tax, which 
is no revenue, has no right to a decree compelling the treasurer holding sucb 



1881.] Town of Yirden et al. v. Needles et al. 367 

Statement of the case. 

tax money collected by him to pay the same over to the corporate authorities 
levying the same, or for whose indebtedness it was levied. If the tax is without 
authority of law, it is no revenue, but belongs to the several persons paying 
the same, and it can not be taken from them and donated without their con- 
sent to the corporate authorities of the town in which it was collected. 

Appeal from the Circuit Court of Sangamon county; the 
Hon. Chaeles S. Zane, Judge, presiding. 

Bill in equity was filed by the town of Virden, in Macou- 
pin county, George Tuttle, William H. Burch, Peter Mayer, 
John J. Wilkins, John J. Cox and Guy M. Chedister, voters 
and tax-payers of said town, against the Auditor of Public 
Accounts and Treasurer of the State of Illinois, the county 
clerk and county treasurer of Macoupin county, the town 
collector of the town of Virden, the Jacksonville, North- 
western and Southeastern Railway Co., and the unknown 
holders of the bonds and coupons of the town of Virden 
issued to the Jacksonville, Northwestern and Southeastern 
Railway Co., to enjoin the payment of any money in the 
hands of the treasurers, State and county, on account of cer- 
tain bonds and annexed coupons which were issued and 
delivered to the Jacksonville, Northwestern and Southeastern 
Railway Co., and from certifying and extending taxes upon 
the taxable property within the town of Virden for the pay- 
ment of such bonds and coupons, — and that said bonds may 
be declared void, etc. 

The court decreed enjoining the payment by the respective 
treasurers of any money in their hands upon such bonds or 
coupons, and also the certifying and extending of taxes upon 
the taxable property within the town of Virden for that 
purpose, but dismissed the bill without prejudice as to the 
unknown bondholders, upon the ground that the court had 
no jurisdiction as against them. 

The complainants bring the record here by appeal, and 
assign for error that the court below erred, first, in dismiss- 
ing the bill as to the unknown bondholders; second, in 



368 Town of Virden et al. v. Needles et at. [March 

Brief for the Appellants. 

refusing to decree the payment of the money in the hands of 
the State and county treasurers, collected and credited to the 
town of Virden on account of the taxes levied for the pay- 
ment of the bonds and annexed coupons issued to the Jack- 
sonville, Northwestern and Southeastern Railway Co., over 
to the corporate authorities of the town of Virden. 

Messrs. Henry & Cook, for the appellants: 

Two questions are presented by the assignment of errors : 

First — As to whether the court erred in dismissing the bill 

as to the unknown owners and holders of bonds "and coupons 

in the bill mentioned. 

The practice of proceeding against unknown owners, etc., 
is regulated by section seven of the chancery practice. 
R. L. 1880, p. 188. The proceedings in this case to bring 
the unknown owners before the court are in conformity with 
this section of the statute. 

The court had jurisdiction of the subject matter, — that is, 
the levy and collection of a tax with which to pay the bonds 
and coupons in controversy. The authority of the State and 
county officers to levy and collect the tax is questioned by 
the bill. To this controversy the State and county officers 
were necessary parties. Smith v. Bangs et al. 15 111. 400, 
and authorities there cited. 

The unknown bondholders, if not necessary, were proper 
parties defendant. Ryan v. Lynch et al. 68 111. 160; liar- 
shall v. Silliman et al. 61 id. 218; Story's Eq. PI. § 117. 

In such case the only means of bringing the unknown 
bondholders into court is by publication. See section 19, 
R. L. p. 189. 

Second — The refusal of the court to decree the payment of 
the money in the hands of the State and county treasurers 
collected off the tax-payers of the town, for the purpose of 
paying the illegal tax, over to the corporate authorities of 
the town. 



1881.] Town of Virden et al. v. Needles et al. 369 

Opinion of the Court. 

The court having acquired jurisdiction for the purpose of 
adjudging the tax to be illegal, and for the purpose of declar- 
ing the bonds void, will proceed, under the exercise of such 
jurisdiction, to grant full and adequate relief, especially 
where it can be done without injury or prejudice to any 
of the parties, and by the doing of which a multiplicity of 
suits can be avoided. The rule is firmly established, that a 
complainant, having paid money for shares in a concern 
which never came into existence, or in furtherance of a 
scheme which was abandoned before it was carried into exe- 
cution, or having paid money on a consideration which has 
failed, is entitled to recover it back. Nochles v. Crosby et al. 
3 Barn. & Cress. 814; Kempson v. Sanders, 13 Eng. C.-L. 
321; Walstab v. Spottswoode, 15 Meeson & "Welsby, 515; 
Bradford v. City of Chicago, 25 111. 423 ; Colville v. Besley, 
2 Denio, 142 ; Rew v. Barber, 3 Cowen, 280. 

Mr. Justice Scholfield delivered the opinion of the 

Court : 

The questions presented by the assignment of errors do not 
affect the decree enjoining the collection of the tax and the 
payment of the taxes collected on account of the bonds and 
annexed coupons issued to the Jacksonville, Northwestern 
and Southeastern Railway Co., and our remarks will be lim- 
ited, strictly, to the errors assigned. 

First. — The bondholders were not personally before the 
court, and no personal decree could, therefore, be rendered 
against them. The notice by publication only enabled the 
court to give effect to the proceeding so far as it was one in 
rem. Harris et al. v. Pullman et al. 84 111. 20; Cooley's. 
Const. Lim. (1st ed.) 404. 

The court did not have the bonds and coupons under its 
control, and so it was impossible to make any decree enforc- 
ing their surrender or cancellation. What decree, then, 
other than that which was rendered, could the court have 
24—98 III. 



370 Town of Vikden et al. v. Needt.es et al. [March 

Opinion of the Court. 

rendered giving complainants relief? We are unable to per- 
ceive any. Hud the bonds and coupons been under the con- 
trol of the court, or their holders been personally within its 
jurisdiction, their cancellation might have been decreed and 
enforced; but without having the bonds and coupons under 
its control, or their holders personally within its jurisdiction, 
this was impossible. 

So far as the taxes, collected and uncollected, are con- 
cerned, the decree gives the complainants all that the protec- 
tion of their interests requires. 

The rule is, when persons who are necessary parties refuse 
to appear, and the court has no power to reach them by its 
process and compel them to appear, the bill must be dismissed 
without prejudice. Picquet v. Swan, 5 Mason C. C. 561. 
The action of the court in dismissing as to the unknown 
bondholders appears, therefore, to be in strict conformity 
with the approved rules of practice. 

Second. — There are several answers to the other assign- 
ment of error. There is no prayer in the bill that a decree 
be rendered directing the paying over of the money collected 
for the payment of the bonds and coupons in question to the 
corporate authorities of the town of Virden. There is no 
allegation that there is any definite amount of such money in 
the hands of the respective treasurers, — the allegations in 
that regard being, "that some portions of the money arising 
from the collection of said illegal tax, from the tax-payers 
aforesaid, are now in the possession of the county treasurer 
of the county of Macoupin, aforesaid, and the State treas- 
urer of the State of Illinois." For aught that appears those 
portions may be too insignificant in amount to justify the 
trouble of making such a decree. 

But, waiving these objections, this dilemma is presented: 
The money thus in the hands of the respective treasurers is 
either there by authority of law, or it is there without 
authority of law. If it is there by authority of law, it is as 
revenue for the payment of the bonds and coupons issued to 



1881.] "Water Commissioners v. Hall. 371 

Syllabus. 

the Jacksonville, Northwestern and Southeastern Railway 
Company, and there can be no lawful right to devote it to 
any other purpose. If it is there without authority of law, 
it is not revenue at all, but belongs to the several tax-payers 
by whom it was paid. There are but five tax-payers parties 
to this suit. They have no right to a decree in regard to that 
which belongs to their neighbors, and if they want to 
donate money which belongs to themselves to the corporate 
authorities of the town of Virden, they can do so without a 
decree. People can not be compelled to give money or prop- 
erty away by decree of court. Donations depend, for their 
validity, upon the free and voluntary act of the donors. 

In our opinion neither of the errors is well assigned. 

The decree below is, in this respect, affirmed. 

Decree affirmed. 



The Board of Water Commissioners 

v. 

Dudley C. Hall. 

Filed at Springfield March 21, 1881. 

Springfield water works — application of surplus tvater rents. Under the 
charter of the Board of Water Commissioners of the city of Springfield, the 
receipts of the corporation from water rents and other sources, when accumu- 
lated to a sum not less than $500, and not needed for current expenses, are 
required to be applied first in the payment of the interest due on the bonds 
issued for the construction of the water works or in the purchase of outstand- 
ing bonds, etc., and the commissioners are not authorized to use such receipts 
in establishing new, expensive structures, with a view of improving the 
quality of the water supplied to the city. 

Writ of Error to the Appellate Court for the Third 
District; — heard in that court on appeal from the Circuit 
Court of Sangamon county; the Hon. Charles S. Zane, 
Judge, presiding. 



372 Water Commissioners v. Hall. [March 



Ot)inion of the Court 



Messrs. Kobinson, Knapp & Shutt, for the plaintiffs in 
error. 

Messrs. Scholes & Mather, for the defendant in error. 
Mr. Justice Mulkey delivered the opinion of the Court: 

This was a proceeding by mandamus, instituted in the San- 
gamon county circuit court, to compel plaintiff in error to 
pay out of its accumulated receipts from water rents not 
required for current expenses, the sum of $2160, being the 
amount of interest on certain water works bonds theretofore 
issued by plaintiff in error, as evidenced by fifty-four past 
due interest coupons, for $40 each. No question is made with 
reference to the regularity of the proceeding, the sufficiency 
of the pleadings or the justness of the claim, and the evidence 
clearly shows that the plaintiff in. error has in its possession 
accumulated receipts from water rents amounting to over 
$10,000, and the only question about which there seems to be 
any serious controversy, is, whether, under the facts of the 
case, the accumulated water rents in the hands of the commis- 
sioners are subject to the payment of the claim sought to be 
enforced. The circuit court, upon the hearing, held that 
they were, and accordingly awarded a peremptory mandamus, 
directing the payment of the petitioner's claim according to 
the prayer of the petition. On appeal to the Appellate Court 
for the Third District the judgment of the circuit court was 
affirmed, and the case comes here on error from the Appellate 
Court. 

The plaintiff in error was incorporated under a special act 
of the legislature, approved February 21, 1861, by the name 
of " The Board of Water Commissioners of the City of 
Springfield." By the fourth section of its charter the com- 
missioners are required "to consider all matters relative to 
supplying the city of Springfield with a sufficient quantity of 
water, to be taken and conducted from the Sangamon river, 
said commissioners to use all reasonable means to furnish the 



1881.] "Water Commissioners v. Hall. 373 

Opinion of the Court. 

water from said river in as pure and wholesome a state as 
possible." By the fifth, sixth and seventh sections the com- 
missioners are authorized and required to establish and put 
in operation a system of water works, for the purpose of sup- 
plying the city of Springfield with water from the Sangamon 
river, as contemplated by the fourth section. By the eighth 
section they are for this purpose, with the assent and approval 
of the city council, authorized to borrow money upon the 
credit of the city in a sum not exceeding $200,000, and issue 
interest bearing bonds for the same. By a subsequent amend- 
ment to the charter, the amount authorized to be borrowed 
for this purpose was increased to §450,000. Sections from 
nine to sixteen inclusive provide for the assessment and col- 
lection of water rents, and other matters not material to the 
present inquiry. The seventeenth section requires semi- 
annual reports to be made by the commissioners, under oath, 
of their receipts and expenditures. The eighteenth section 
then provides, that "whenever the receipts of the said corpo- 
ration, from water rents and other sources, shall accumulate 
so that there shall be a surplus amounting to a sum not less 
than §500 not used for current expenses of the said corpora- 
tion, it shall be the duty of the commissioners to invest the 
same, first, in the payment of the interest on said bonds as it 
becomes due, or in the purchase of outstanding bonds," etc. 

Under the authority conferred upon the commissioners, 
they proceeded to borrow money and issue therefor interest 
bearing bonds, including those on which the interest is now 
sought to be recovered, and have expended the same to the 
amount of §450,000, the full limit of their charter, in the 
establishment of a system of water works, which has been in 
operation for a number of years, — exactly how long the 
record does not disclose. 

It is clear, from the evidence, that there is a surplus of 
over §10,000 of accumulated rents in the hands of the com- 
missioners not required for current expenses, as contemplated 
by the eighteenth section above cited, being more than suffi- 



374 Water Commissioners v. Hall. [March 

Opinion of the Court. 

cient to pay the petitioner's claim, yet plaintiff in error in- 
sists that the petitioner's right to have it thus applied is 
subordinate to the right of the commissioners to expend it in 
extending their present system of works and in establishing 
new, expensive structures, with a view of improving the 
quality of the water, which is shown to have become impure, 
and the second proviso in the eighth section is relied on in 
support of this view. The proviso is in these words : 
"Provided, further, that all funds derived from the sale of 
the bonds of the said board, or from water rents or other- 
wise, shall be exclusively used for and appropriated by said 
board to the objects and purposes specified in this act; nor 
shall any part thereof be loaned to or used by the city of 
Springfield." 

We do not think a fair construction of the language here 
used warrants the inference which is sought to be drawn from 
it. We are unable to perceive anything in it that can fairly 
be regarded as a limitation on the specific provision in the 
eighteenth section, which requires this surplus to be applied 
in the payment of the interest on the bonded debt, or in 
taking up the bonds themselves. 

In view of the very large amount the commissioners were 
authorized to raise by issuing and negotiating the city's 
bonds, it is but reasonable to suppose that the legislature 
contemplated that the amount to be thus raised would be 
amply sufficient to establish and put in successful operation 
the proposed water works, and that when thus established 
they would not only be self-sustaining, but would also afford 
a surplus revenue in excess of that which would be required 
to defray the current expenses of the concern, to be applied 
in the reduction of the bonded debt. Hence the provision in 
the eighteenth section requiring it to be thus applied. And 
if the legislature made a mistake in reference to this matter, 
and more funds are required than have been provided for, it 
would not authorize the board to supply the deficiency out 
of a fund specifically appropriated to another purpose. The 



1881.] Water Commissioners v. Hall. 375 

Opinion of the Court. 

proviso simply requires that the rents or other funds in the 
hands of the commissioners shall be appropriated to the 
objects and purposes specified in the act. And since whatever 
an act of the legislature expressly requires to be done must 
be regarded as one of the objects or purposes of the act, we 
are unable to perceive why the application of the surplus 
rents, when not less than §500, and not required for "current" 
expenses, in liquidation of the interest on the bonded debt 
would not be an appropriation of such surplus to the objects 
and purposes specified in the act, as required by the proviso 
in question. At any rate, we are of opinion that the specific 
provision of the eighteenth section is not limited by anything 
contained in the eighth or any other section in the charter, 
and it therefore follows that any surplus, not less than $500, 
in the hands of the commissioners, and not needed for current 
expenses, must be applied as required by the eighteenth sec- 
tion, — and that is what the petition in the present suit seeks 
to have done. The difficulties and embarrassments of the 
board in not being able to fully accomplish the original 
objects and purposes of the act, by reason of a want of the 
necessary funds, are matters addressed to the wisdom and 
discretion of the legislature rather than the judicial depart- 
ment of government. 

We are of opinion that the judgment of the circuit court 
in awarding the peremptory writ of mandamus was proper, 
and that consequently the Appellate Court committed no 
error in affirming it. 

The judgment of the Appellate Court is, therefore, affirmed. 

Judgment affirmed. 



376 King et al v. C, D. & V. R. R. Co. e£ a?. [March 

Syllabus. 



George S. King e£ al. 

v. 

The Chicago, Danville and Yincennes R. R. Co. et al. 

Filed at Ottawa November 20, 1880 — Rehearing denied March Term, 1881. 

1. Stipulation construed — whether a suit at law and one in chancery are 
to be tried separately or as one suit. In a suit in chancery pending, the follow- 
ing stipulation was made: "It is hereby stipulated and agreed that the 
issues now pending in a certain cause, entitled as above, in the above court, 
on the common law side thereof, shall be tried in the above entitled cause on 
the chancery side thereof, subject to the approval of the chancellor." The 
law case thus spoken of had been previously dismissed for want of prosecu- 
tion, but, at the same time the foregoing stipulation was filed, there was a 
stipulation filed in that case, which, after entitling the cause and giving the 
term of court, was as follows: "It is hereby stipulated and agreed that the 
above cause may be reinstated on the docket, and the said suit proceed as if 
the same had remained continuously upon the docket, the same to be tried 
upon the merits according to a stipulation filed in a cause pending on the 
chancery side of said court between the same parties, plaintiff and defend- 
ants." The two causes were pending in the same court and were tried before 
the same judge, who rendered a judgment in the case at law and a decree in 
the suit in chancery, treating the two cases as separate and distinct. Upon 
objection that, under the stipulations, the chancery case was really the only 
case tried, and that the questions arising in the law case were made ques- 
tions in equity instead of at law, it was held, the stipulations were not to be 
so construed. The intent was, simply that a jury might be dispensed with, 
and all the evidence in both cases be submitted at once, to the same judge, 
who should dispose of the one as a law judge, and of the other as a chan- 
cellor. 

2. Practice — when specific objection should be made. Under a stipulation 
between the parties in a cause that certain depositions taken in another suit 
might be read in evidence in the pending suit, depositions were received in 
evidence against the objections that they were " incompetent, improper and 
irrelevant in the cause." In this court the objection taken to the depositions 
went only to the identity of those which were given in evidence with those 
described in the stipulation, the discrepancy arising as to the names of the 
parties to the suit in which the depositions had been taken. It was held, this 
specific objection, in order to avail the party in this court should have been 
made in the trial court, in order that an opportunity might have been had 
either to show that these were, in fact, the depositions alluded to in the stip- 
ulation, or to have produced those which were therein alluded to. 



1881.] King et at v. C., D. & V. E. R. Co. et al 377 

Opinion of the Court. 

3. An objection to the admission in evidence of the assignment of a judg- 
ment, on the ground that there was no proof of the execution of the alleged 
assignment, will not avail in this court unless that specific objection was made 
on the trial in the court below. The general objection, "to the reading of 
which in evidence the complainant objected," will not be sufficient. . 

Appeal from the Appellate Court for the First District; — 
heard in that court on- appeal from the Circuit Court of Cook 
county; the Hon. Murray F. Tuley, Judge, presiding. 

Messrs. Judd & Whitehouse, for the appellants. 

Mr. E. Walker, for the appellees. 

Mr. Justice Scholfield delivered the opinion of the 
Court : 

The Chicago, Danville and Vincennes Railroad Company, 
on the 12th day of April, 1873, recovered a judgment at 
law against Cornelius R. Field, George S. King and Belzabel 
"W". Phillips, partners under the firm name of Field, King 
& Co., in the Cook county circuit court, for $5,729.16 and 
costs of suit. Execution issued upon this judgment and was 
placed in the hands of Robert Pritchard, sheriff of Fulton 
county, to execute. 

On the 28th day of December, 1874, Field, King & Co. 
filed their bill in chancery in the same court, against the rail- 
road company and Pritchard, to enjoin the collection of that 
judgment, and to offset against the same so much of certain 
indebtedness due from the railroad company to Field, King 
& Co. as would fully satisfy and discharge the judgment, 
interest and costs. It was also shown by the bill that an 
action of assumpsit had been commenced by Field, King & 
Co. against the railroad company, in the same court, to 
recover the indebtedness which they claimed to be due them 
from the railroad company, and which they proposed to 
offset against the judgment of the railroad company, which 
action was then pending and undetermined. 



378 King et al. v. C, D. & V. K. R. Co. et al. [March 

Opinion of the Court. 

A demurrer was interposed to the bill of complaint, which 
was overruled by the court, and the railroad company elect- 
ing to stand by its demurrer and refusing to answer over, a 
decree was rendered in conformity with the prayer of the 
bill. From that decree the railroad company appealed to 
this court. The cause was heard here at our September term, 
1877, and the judgment of this court was that the decree of 
the court below be reversed, and the cause remanded for 
further proceedings conformably to the opinion then filed. 
Chicago, Danville and Vincennes Railroad Co. v. Field et al. 
86 111. 270. We then, among other things, said: "A suit 
had been brought by the complainants in a court of law, and 
was then pending, for the recovery of their alleged indebted- 
ness. The court of law was the proper forum for the adjudi- 
cation of the fact and amount of the indebtedness, and it 
should have been left with that court to determine the same 
in the suit then pending. All the equitable relief complainants 
needed, and were entitled to under the bill, was the stay of 
the collection of the judgment until the time of such deter- 
mination; and then to have the injunction made perpetual in 
whole or in part, or dissolved, according as such determina- 
tion might be." 

Subsequent to the remanding of the cause, a stipulation 
was entered into between the parties in these words, after 
entitling the cause and giving the term of court: "It is 
hereby stipulated and agreed that the issues now pending in 
a certain cause entitled as above, in the above court, on the 
common law side thereof, shall be tried in the above entitled 
cause on the chancery side thereof, subject to the approval 
of the chancellor. " 

The law case had been previously dismissed for want of 
prosecution, but, at the same time that the foregoing stipula- 
tion was filed, there was a stipulation filed in that case, 
which, after entitling the cause and giving the term of court, 
is as follows: "It is hereby stipulated and agreed that the 
above cause may be reinstated on the docket, and the said 



1881.] King et al v. C., D. & V. R. E. Co. et al. 379 

Opinion of the Court. 

suit proceed as if the same had remained continuously upon 
the docket, the same to be tried upon the merits according to 
a stipulation filed in a cause pending on the chancery side 
of said court between the same parties, plaintiff and de- 
fendants." 

The circuit court proceeded to hear all the evidence offered 
applicable to either case, and then rendered a judgment in 
the law case in favor of the defendants therein, and a decree 
in chancery dissolving the temporary injunction and dismiss- 
ing the complainants' bill. Field, King & Co. prayed and 
perfected an appeal in both cases, filing a separate bond in 
each case, to the Appellate Court for the First District. A 
single record, showing all the pleadings, orders, etc., in both 
cases, was made out for that court, and constitutes, with the 
orders of the Appellate Court, the record now before us. 
The Appellate Court affirmed the judgment in the law case, 
and affirmed the decree in the chancery case, except as to the 
allowance of damages upon the dissolution of the injunction, 
in which respect it was reversed. The present appeal is from 
these judgments of the Appellate Court. 

Following the ruling when the chancery case was here 
before, the judgment in the law case is conclusive as to the 
decree to be rendered in the chancery case. If there is no 
recovery in that case, there can be nothing to set off against 
the other judgment. 

No error of law, occurring on the trial of the law case, is 
alleged. The only question in the Appellate Court was one 
of fact, and the decision of that court was, therefore, conclu- 
sive. But counsel for appellants insist that, by virtue of 
the stipulations, the chancery case was, in reality, the only 
case tried, and the question of the indebtedness of the rail- 
road company to appellants was made one in equity, instead 
of at law. The stipulations do not so declare. They do not 
direct that the decree in the chancery case shall be entered 
up on the evidence in the law case, nor do they provide that 
the chancery case and the law case shall be consolidated. 



380 King et at. v. C., D. & V. R. R. Co. et al. [March 

Opinion of the Court. 

But it is said by counsel, in support of the other view, a 
chancellor can not hear evidence and determine issues in a 
law case — which is very true. But it must be remembered 
that, in our system of jurisprudence, every law judge is also 
a chancellor; and there is nothing, therefore, to prevent him, 
when the parties so agree, from sitting and hearing, at the 
same time, evidence which, in one part, is applicable to a 
suit pending in chancery, and, in another part, to a suit pend- 
ing at law; and, when he gets through, entering up a judg- 
ment in the one case and a decree in the other. So, here, 
the intent was, as we conceive, simply that a jury be dis- 
pensed with, and all the evidence be submitted at once. The 
stipulations do not provide that a decree is to be rendered 
upon the evidence heard upon the issues in the law case. 
They do not provide for the abandonment of the law case, 
but, upon the contrary, the stipulation in the law case 
expressly declares that that case shall be reinstated on the 
docket, and then adds: "and the said suit proceed, as if the 
same had remained continuously upon the docket." What 
is meant by proceeding? The same stipulation provides that 
the cause shall be " tried upon its merits," not abandoned; 
and if a cause is to be tried upon its merits, and " proceed," 
it would seem, necessarily, to result that a judgment must 
follow the trial. The issues, it is true, were to be tried in 
the chancery cause, subject to the approval of the chancellor; 
but since he was not authorized to pronounce a decree there- 
on, the implication is that he should render judgment upon 
those issues, — in doing which he would, of course, act as a 
common law judge, as in rendering a decree he would act as 
a chancellor. There was a cogent reason why a judgment 
was desired in the law case, and, by reinstating the case upon 
the docket, and stipulating that it should proceed, it is mani- 
fest that reason was acted upon; an amount was claimed, iti 
the law case, beyond the proposed off-set, and costs had been 
incurred in that action. There is no ground for saying that 



1881.] King et al v. C., D. & V. E. E. Co. et al. 381 

Opinion of the Court. 

it was intended a decree should embrace these, nor could a 
decree have properly done so. 

Assuming that it is shown that a judgment was to be en- 
tered in the law case, it must follow that the evidence upon 
which the judgment was based can not be reviewed in the 
chancery case. It was the judgment in the law case, not the 
evidence supporting it, that authorized the decree in the chan- 
cery case. Whether the evidence sustained the judgment or 
not, the judgment, until reversed, was conclusive of the 
amount due, and hence of the amount of the proposed off-set. 

The position of counsel for the appellants assumes that it 
is the evidence upon which the judgment is rendered that 
authorizes the decree in the chancery case. But this is a 
misapprehension. The law case was determined to be the 
appropriate case in which to settle the fact of indebtedness, 
and this would be shown by its judgment. So the judgment, 
alone, in the law case would determine whether there was or 
was not matter of set-off". And this must be true without 
reference to when or where the issues in the law case were to 
be settled, so long as it was not intended that case should be 
abandoned. Its judgment would be conclusive evidence 
either that there was or was not an indebtedness as claimed. 
Had it been intended to settle this controversy in chancery 
alone, without reference to a judgment at law, there could 
have been no reason for reinstating the law case upon the 
docket and providing that it should proceed ; and it would 
have been easy to have expressed the intention in clear and 
unmistakable language. 

There is clearly no more authority here for saying that the 
law case was converted into a chancery case than there is for 
saying that the chancery case was converted into a law case. 

The stipulations related to the hearing or trial alone, and 
did not include the final judgment and decree to be rendered. 
The circuit court properly entered a judgment in the law 
case, and this being for defendant, there was no alternative in 
the chancery case but to decree as was done. 



382 King et al v. C., D. & V. K. E. Co. et al [March 

Mr. Chief Justice Dickey, dissenting. 

We find no error in the ruling of the Appellate Court and 
its judgment will, therefore, be affirmed. 

Judgment affirmed, 

]\Jr. Chief Justice Dickey, dissenting : 

I can not concur in the ruling upon which this case is 
decided. As I understand the record, the law case had been 
dismissed for want of prosecution before the chancery case was 
re-docketed in the circuit court under the mandate of this 
court. 

Thereupon, a stipulation dated February 18, 1878, signed 
by counsel for the respective parties, was filed in the chan- 
cery cause, by which it was agreed " that the issues now pend- 
ing in a certain cause entitled as above in the above court, 
on the common law side thereof, shall be tried in the above 
entitled cause on the chancery side thereof, subject to the 
approval of the chancellor." 

On the 19th of the same month, a stipulation was filed in 
the law case, signed by the respective attorneys on the 18th of 
the same month, by which it was agreed, as to that cause, that 
it "may be reinstated on the docket and the said suit proceed 
as if the same had remained continuously upon the docket, 
the same to be tried upon the merits, according to a stipula- 
tion filed in a cause pending on the chancery side of said 
court, between the same parties." 

At this time there was no pleading in the law case except the 
plaintiffs' declaration and a demurrer thereto. The demur- 
rer had been overruled, and, after that, on May 11, 1877, 
that case had been dismissed for want of prosecution. 

What is the fair meaning of these stipulations, when read 
together? 

The stipulation in the law case is, that the case shall be 
reinstated and proceed as though the order of dismissal had 
not been made, " the same to be tried upon its merits accord- 
ing to the stipulation filed " in the chancery cause, that is, 
" the issues " in the law case, "shall be tried w in the chan- 



1881.] King et al v. C., D. & V. K. K. Co. et al 383 

Mr. Chief Justice Dickey, dissenting. 

eery case, "on the chancery side thereof, subject to the 
approval of the chancellor." 

Can it be said that this is an agreement to submit the trial of 
the issues to the law court, without a jury, as provided in our 
act regulating trials in law cases? It seems to me this is 
not the meaning of the parties. On the contrary, the issues 
are to be tried "on the chancery side" of the court, and in 
the chancery suit, and all this " subject to the approval of 
the chancellor." The Supreme Court had said in this chan- 
cery case, {86 111. 270), " the court of law was the proper 
forum for the adjudication of the fact and amount of indebt- 
edness, and it should have been left to that court to determine 
the same." The defendants, however, were now willing to 
waive their right to a trial in the law court, and to submit 
the issue of indebtedness to the chancellor, but the chan- 
cellor, under the decision in 86 111. supra, might not be will- 
ing to try that question, and might say to the parties, settle 
the question of indebtedness at law, as suggested by the 
Supreme Court, and I will stay the execution on the old 
judgment of the defendants, until that question is settled in 
a court of law, and then decree accordingly. For this reason 
plainly this whole agreement was made " subject to the 
approval of the chancellor." Had this agreement been 
simply an agreement to submit the issues to the law court, 
without a jury, to be tried at the same time the chancery 
cause should be tried, there would have been no need of say- 
ing, "subject to the approval of the chancellor." Had that 
been the agreement, it would have required the consent of 
the law court, as well as the chancellor, to have both trials 
going on at the same time. In Cook county, where there are 
five circuit judges, the law courts and the chancery courts are 
not usually held by the same judge at the same time. 

If the agreement was not that the issue, the fact and 
amount of indebtedness, should be tried in chancery, why 
was it that the chancellor proceeded to hear, in the chancery 
cause, all the evidence relating to these issues ? The conduct 



384 King et al. v. C, D. & V. R. E. Co. et al [March 

Mr. Chief Justice Dickey, dissenting. 

of the parties, the course of the proofs on the hearing, and 
the decree of the court, all show that the parties understood 
by these agreements, these issues were to be tried in chan- 
cery. The certificate of evidence is drawn in the chancery 
cause, setting out all the proofs. The decree of the court 
and its recitals show this. The decree says the cause was 
heard January 21, 1880, on " pleadings and proofs taken therein 
and oral testimony given in open court, and counsel having 
been heard, it is adjudged and decreed that the equities are 
with respondents, that the temporary injunction be dissolved, 
with leave to the defendant company to file suggestion of 
damages, and that the bill be dismissed." The decree then 
recites, that it appeared to the court that the law case (men- 
tioned in the stipulations) was pending, and that the parties 
entered into the stipulations of February 18, 1878, " whereby 
the parties stipulated that the issues in said law action should 
be tried and determined in this cause, * * * which said 
cause was so heard in accordance with said stipulation" — and 
it further appearing to the court * * * that the defend- 
ant is not indebted to complainants as alleged in the declara- 
tion in the law case, * * * it is, therefore, ordered and 
decreed that the respondent railroad company recover costs 
in this (chancery suit). 

Here is a finding by the chancellor as such, that de- 
fendant is not indebted, and nothing is said about such 
finding being founded upon a judgment in the law case, but 
the decree is placed expressly upon the proofs, before that 
time taken, and upon oral evidence and upon the stipulations, 
which, up to this time, were construed to mean exactly what 
I contend they do mean. 

The chancellor had jurisdiction as such to try the question 
of indebtedness. The indebtedness was alleged in the bill 
and denied in the answer, and, although the defendant 
might have refused to have had that issue tried in chancery, 
it agreed it should be, and it in fact was. 



1881.] King et al v. C, D. & V. R. R. Co. et al. 385 

Mr. Chief Justice Dickey, dissenting. 

If tried on the chancery side, the trial, as to mode, must be 
according to the rules of proceeding in chancery, and not by 
the rules of law relating to cases in the circuit court as a law 
court. 

If the finding in the chancery cause of the facts, had been 
produced in the law court after the decree, it may be the 
law court might, on motion, have entered judgment for 
defendant. That, however, would not preclude this court 
from reviewing the evidence on which the decree was ren- 
dered. That decree is before us, and all the evidence given. 

The certificate of evidence, as I understand the transcript, 
does not show that the judgment in the law case was offered 
in evidence on the hearing in chancery. That certificate 
does show, as the decree indicates, that the pleadings in the 
law case were given in evidence at the hearing of the chan- 
cery cause, and also the stipulations of February 18, 1878. 
There appears, in addition to this, to be injected into that 
part of the transcript what seems to be a transcript of the 
other parts of the record in the law case, embracing proceed- 
ings of January 21, 1880, (the same day of the hearing of the 
chancery cause), showing, that by virtue of the stipulation of 
February 18, 1878, the law court held that the issue in the^ 
law case was submitted to the law court for trial, and recit- 
ing a trial thereof by the court, a finding for defendant, and 
judgment on the finding for costs, an appeal prayed and 
allowed; also an order of the law court of February 9, 1880, 
giving further time for bill of exceptions, and also a copy of 
an appeal bond, filed February 11, 1880, in the law case. 
This certificate of evidence is dated January 30, 1880. It 
is impossible that on January 30, 1880, the judge of the court 
could certify, as evidence heard at a hearing January 21 
1880, a copy of an order made February 9, 1880, or the copy 
of an appeal bond made February 11, 1880. 

To determine, therefore, what of the matter contained in 
the transcript was given in evidence at the hearing, we must 
confine ourselves to that which is therein stated to have been 
25—98 III. 



386 King et al. v. C, D. & V. R. R. Co. e£ a?. [March 



Mr. Justice Sheldon, dissenting . 



so given in evidence. There is no such statement in relation 
to the judgment in the law case, or as to the order of February 
9, 1880, or as to the appeal bond of February 11, 1880. 

After a careful examination of the transcript, it seems plain 
to me, that after this decree in chancery was entered, but on 
the same day, the court took up the law case against the ob- 
jection of plaintiff, and against his objection gave leave to 
defendant to file a plea of general issue in the law case, nunc 
pro tunc, as of the 18th of February, 1878, and thereupon by 
virtue of the stipulation of February 18, 1878, construing it as 
an agreement to waive a jury and submit the issue to the 
court on the law side for trial without a jury, against the ob- 
jection of appellants, proceeded, upon consideration of the evi- 
dence heard in the chancery cause, to find the issues in the 
law case for defendant, and to render judgment on this find- 
ing, and from this judgment plaintiff also appealed. 

I think the decree in chancery is subject to review here, 
and the evidence on which it rests, and that the judgment at 
law should cut no figure in the examination of the proceed- 
ings in the chancery cause. I am convinced, from this 
record, that the judgment, in fact, rests upon the finding in 
chancery, and the finding in chancery does not rest upon the 
judgment at law. 

There are two appeals, — one, from the judgment at law. 
That judgment was affirmed by the Appellate Court. It 
ought to have been reversed, as I think, for irregularity. I 
think it was error in the circuit court, on the law side, to 
assume to try the issues upon evidence, without a jury, with 
no other warrant than the stipulation in the record. The 
merits of this controversy, as shown by the evidence in the 
chancery case, this court refuses to examine. I think they 
ought to be considered and determined by this court. 

Mr. Justice Sheldon concurs with the Chief Justice. 



1881.] King et al. v. C, D. & V. R. K. Co. et al. 387 

Additional opinion of the Court. 

Subsequently, upon an application for a rehearing, the fol- 
lowing additional opinion was filed : 

Per Curiam : A petition for rehearing has been presented 
in the present case, predicated, in part, on the alleged ground 
that thepe were errors of law in the judgment of the Appel- 
late Court, which have not been noticed in the foregoing 
opinion. 

The alleged errors are in admitting in evidence the deposi- 
tions of Cornelius R. Field, William D. Judson and Amos 
Tenney, and in admitting in evidence an assignment purport- 
ing to have been executed on November 13, 1874, by the 
Chicago, Danville and Vincennes Railroad Company, to 
Edwin Walker, of the judgment recovered by the railroad 
company against the appellants. 

There was a stipulation between the parties to this record, 
whereby it was stipulated that, "the deposition of the com- 
plainant Field, taken in a cause heretofore in said circuit 
court, on the chancery side thereof, between the said parties, 
may be read in evidence, subject to all objections other than 
to the form or manner of taking the same ; also depositions 
of W. D. Judson and Amos Tenney, taken in the same cause, 
and filed therein February 26, 1873, subject to the same ob- 
jections." 

The deposition of Field, read in evidence, purports to have 
been taken "in an equity proceeding in the circuit court of 
Cook county, in a cause wherein Field, King & Co. were 
complainants, and the Chicago, Danville and Vincennes Rail- 
road Company and Joseph E. Young & Co. were defendants." 
And the depositions of Judson and Tenney, read in evidence, 
purport to have been taken " in a case in equity in the cir- 
cuit court of Cook county, wherein Cornelius R. Field et al. 
were complainants, and the Chicago, Danville and Vincennes 
Railroad Company, William D. Judson, Amos Tenney and 
Joseph E. Young were defendants." The objection now in- 
sisted on is, that the depositions read in evidence are not the 



388 King et al v. C, D. & V. R. R. Co. et al. [March 

Additional opinion of the Court. 

same depositions named in the stipulation; Joseph E. Young 
& Co., or others named above, are not named in the stipula- 
tion as parties defendant, but the Chicago, Danville and Vin- 
cennes Railroad Company only is defendant therein. 

This goes only to the identity of the depositions. It is 
clear that these witnesses had given depositions which the 
parties intended should be read in evidence; and if these 
were not the right depositions, the right ones should have 
been produced. 

If, therefore, the objection is not purely captious, it should 
have been called explicitly to the attention of the counsel 
offering the depositions, in order that he should have had an 
opportunity either to show that these were, in fact, the depo- 
sitions alluded to in the stipulation, or to have produced the 
depositions therein alluded to. 

But the objection in the circuit court did not point out that 
the depositions offered in evidence were not the same alluded 
to in the stipulation. It was entirely general, and indicated 
no specific ground for their exclusion. It was " because said 
depositions, and each thereof, are incompetent, improper and 
irrelevant as evidence in this cause; " but why " incompe- 
tent," " improper," or " irrelevant," is not disclosed. This 
was insufficient to save the objection now urged. Sargeant v. 
Kellogg et al. 5 Gilm. 273; Buntain v. Bailey, 27 111. 410; 
Hyde v. Heath, 75 id. 381; Clevenger v. Dunaway, 84 id. 367. 

The objection in regard to the admission in evidence 
of the assignment of the judgment is, that there was no proof 
of the execution of the alleged assignment. The record 
seems to contradict this allegation ; but, conceding that it 
does not, that specific objection was not urged on the trial, 
and, on the authority of the cases referred to in regard to the 
objections to the admissibility of the depositions, it could 
not, for the first time, be urged in an appellate court. The 
objection urged on the trial was only " to the reading of 
which in evidence the complainant objected." Why this 
objection was made, the record fails to disclose. Wherefore 



1881.] Piper et al. v. Jacobson. 389 



Syllabus. Statement of the case. 



we repeat what we said in the original opinion, there was no 
question of law in the common law case for the Appellate 
Court. 

The petition for rehearing is overruled. 

Reliearing denied. 



Anson S. Piper et al. 

v. 
Augustus Jacobson. 

.Filed ai Ottawa March 18, 1881. 

1. Appeal from an Appellate Court — as to the amount involved — jurisdiction. 
On an appeal from an Appellate Court to this court, where the jurisdiction of 
this court depends upon the amount involved, the fact in that regard should 
appear from the record, or by certificate from the Appellate Court or judges, 
in granting the appeal. This court will not hear evidence in order that it 
may determine whether the appeal was rightfully taken, nor will averments 
in the pleadings be regarded as showing the fact. 

2. On bill by the receiver of a bank, against the bank, its stockholders, 
and to which the creditors of the bank Avere made parties, after an appeal to 
an Appellate Court, some of the creditors appealed from the Appellate Court 
to this court. The purpose of the bill was to enforce the liability of the 
stockholders for the debts of the bank. A decree was entered directing cer- 
tain of the stockholders to pay to the receiver for the benefit of creditors the 
sum of $35,000, but it did not appear that the claim of either of the creditors 
who took the appeal was for the sum of $1000, or more, and as the jurisdic- 
tion of this court depended upon that fact, it was held the appeal was 
improvidently taken. 

Appeal from the Appellate Court for the First District; — 
heard in that court on appeal from the Superior Court of 
Cook county ; the Hon. S. M. Moore, Judge, presiding. 

This was a suit in chancery, instituted in the Superior 
Court of Cook county for the purpose of enforcing the lia- 
bility of the stockholders in the " Bank of Chicago," for the 
debts of the bank, and to subject the assets of the bank to 



390 Piper el al, v. Jacobson. [March 

Opinion of the Court. 

the claims of creditors. Certain of the creditors, who were 
parties to the suit, appealed from the decree of the trial 
court to the Appellate Court for the First District, where the 
decree was affirmed. Thereupon an appeal was taken from 
the Appellate Court to this court. The only question now 
considered is whether this second appeal will lie. 

Messrs. Shufeldt & Westover, for the appellants. 

Messrs. Mattocks & Mason, and Mr. Alfred Bishop 
Mason, for the appellee. 

Mr. Justice Walker delivered the opinion of the Court: 

The record in this case discloses the fact that Cunningham 
filed a bill, and subsequently, an amended bill, against the 
bank and all of the stockholders and a portion of its creditors, 
as a judgment creditor. He alleges that he had recovered a 
judgment against the bank, had sued out an execution thereon 
which had been returned no property found, and it was un- 
satisfied; that the bank had suspended business and was in- 
solvent; that there were numerous creditors of the bank; 
that the bank officers and the stockholders attempted by 
collusion to defraud creditors, and escape liability by ap- 
propriating its assets; had made an assignment to oneCoates, 
apparently for the benefit of creditors, but to defraud them. 

He further alleges, that creditors had commenced fictitious 
suits against stockholders, and makes them parties. He 
prays a discovery; that the assignment to Coates be set 
aside as fraudulent, and the property be transferred to a re- 
ceiver; that the stockholders, or some of them, be decreed to 
pay his judgment, and they be decreed to pay a pro rata 
amount sufficient to satisfy the same. 

The stockholders answered, some denying all liability, 
others admitting theirs, and still others that they had been 
liable, but had discharged the liability by recovery of judg- 
ments against them by creditors of the bank, which they had 






1881.] Piper et al. v. Jacobson. 391 

Opinion of the Court. 

paid. A portion set up that there were a number of suits by 
creditors of the bank, in which judgments had been recovered, 
but were not satisfied, or that such suits were still pending. 

The creditors who were in court answered, stating they 
had brought suits at law, some that they had recovered judg- 
ments against stockholders, but they were unsatisfied, and 
others that they had brought such suits, but had not recov- 
ered judgments. They all insisted they had a legal right to 
maintain suits at law, and against the several stockholders, 
and were not required to sue the stockholders jointly, and 
that the remedy for a recovery was at law, and not in chan- 
cery, and that the court could not deprive them of their legal 
remedies or the rights they had obtained and recovered in 
their several actions at law. 

Afterwards, the deed of assignment by the bank to Coates 
was set aside and a receiver appointed, who filed a similar 
bill, and praying for the same relief as Cunningham had. 
To it similar answers were filed. He then filed a petition 
against Hunger and Hatch, asking an order that they pay 
the amount of their liability, under the charter, as stock- 
holders, to him for the benefit of creditors of the bank. They 
answered the petition. Hough, the receiver, then resigned 
and Jacobson was appointed in his stead. 

The cases of Cunningham against the bank, stockholders, 
etc., and the bill of Hough against the same parties, were 
consolidated, and a reference was made to the master to report. 
The petitions against Munger and Hatch were referred to the 
master to hear and report the evidence. He reported the 
amount of stock they severally held, and the court rendered 
a decree that Munger pay the receiver $25,000, and Hatch 
pay to him $10,000. Piper and other creditors appealed 
to the Appellate Court, where, on a hearing, the decree of the 
Superior Court was affirmed, and they bring the case to this 
court and assign errors. 

As this case comes from the Appellate Court, we can not 
entertain the appeal unless it is given by the statute. Appel- 



392 Piper et al. v. Jacobson. [March 



Opinion of the Court. 



]ee insists that it must be dismissed because there is nothing 
in the record to show that the claim of either appellant is 
$1000 or more. We have examined the record with some 
care and have been unable to find any such finding or proof. 
Nor have counsel for appellants, in their argument on the 
motion to dismiss, referred us to the portion of the record 
where such evidence of the fact may be found. The con- 
struction Ave have given to the statute requires that this fact 
should appear from the record, or by certificate from the Ap- 
pellate Court or judges, in granting .the appeal. See 31c- 
Guirk v. Burry, 93 111. 118; Lewis v. Shear, ibid. 121 ; Morris 
v. Preston, ibid. 215, and Hancock v. Tower, ibid. 150. It 
was held we would not hear evidence to determine whether 
the appeal was rightfully taken, nor would averments in the 
pleadings be regarded as showing the fact. 

But it is said the decree in favor of Jacobson and against 
Munger and Hatch is for $35,000, and appellants were parties 
to that record. This is true, but they were creditors of the 
bank, and their complaint is that the decree diminishes the 
amount they are entitled to receive. Concede this to be true, 
still there is nothing to show the amount of the debt of 
either appellant is $1000 or more. Even if by that decree they 
were to lose their several debts, we can not presume, in the 
absence of anything to show the amount, that either appel- 
lant has a claim of $1000 or more. 

When the motion to dismiss was made, as it involved an 

examination of the record to learn the precise attitude of 

appellants to the case, the motion was, therefore, reserved to 

the hearing, that more time could be had for the examination. 

But we thereby find that the appeal was improvidently 

granted, and it is dismissed. 

Appeal dismissed. 



1881.] Dodd v. Doty. 393 

Syllabus. Statement of the case. 



Samuel M. Dodd 

v. 
Leonid as Doty. 

Filed at Mt. Vernon February 3, 1881 — Rehearing denied May Term, 1881. 

1. Recording law — marring of index of record will not affect title as to an 
innocent purchaser. Where a former owner of land has conveyed the same by 
warranty deed, which is duly recorded, the fact that the index in the record- 
er's office has been marred, so that a party taking a deed of trust from him 
failed to discover such prior conveyance, will in no way impair the title of 
those holding under such prior deed, who had nothing to do with the makiiag 
or marring of the index. 

2. Assignment in blank. — presumption as to date. Presumptively, where 
commercial paper is indorsed in blank, the same was assigned on the day it 
was made. But qucere, whether this rule is applicable to an assignment in 
blank of a bond for a deed. 

3. Evidence — burden of proof. Where a party takes a deed of trust from 
one to whom a bond for a deed was given, and it afterwards appears the 
bond was assigned by the obligee without date, under which a second assignee 
procures a deed without notice of any secret equity in the first assignee at 
the time of giving the trust deed, the burden of proof in a suit by a purchaser 
under the trust deed against the grantee under the assignment will be upon 
the purchaser under the deed of trust, to show that at the time it was given 
the maker of the same had an equitable title in the land, and that the person 
acquiring the legal title under the assignment of the bond had notice of such 
equitable title when he bought the bond. In such a case the mere proof of a 
secret equity in one party, of which the other had no notice, can not prevail 
against the legal title, honestly obtained. 

Writ of Error to the Circuit Court of Jackson county; 
the Hon. Monroe C. Crawford, Judge, presiding. 

On the 8th of November, 1866, Stephen S. Hall, being in 
possession of the property in controversy, — the south-east 
quarter, and the south half of the north-east quarter of sec- 
tion 16, in township 8 south, range 1 west, in the county of 
Jackson, — conveyed the same to Wrn. H. Davis, who, on 
April 13, 1867, conveyed to D. A. Given, and Given con- 
veyed, on January 23, 1868, to W. O. Britt, of Kentucky or 



394: Dodd v. Doty. [May 



Statement of the 



Tennessee. Each of these deeds was duly filed for record 
soon after its execution, and the last named deed was so filed 
January 31, 1868. 

On the 26th of May, 1869, Britt gave to Hall a title bond 
for the land in controversy, by which he agreed to convey it 
to Hall, or his assigns, upon payment to him of certain notes 
given him by Hall, for $6000, and interest. This instrument 
was not recorded. This bond was assigned by Hall in blank, 
and in February, 1875, as hereafter stated, was found by 
Dodd in the possession of one Gibson, by whom it was then 
assigned to Dodd, and Britt conveyed to Dodd. But of this 
hereafter. 

On November 28, 1871, Hall, being still in possession of 
this land, with other adjoining lands, conveyed the whole of 
his farm, embracing the land in controversy, to Henry C. 
Wilson, by a trust deed, to secure to Doty the payment of 
certain notes executed at the same time by Hall to Doty, 
amounting to $15,000 principal, and payable from time to 
time, with annual interest, further evidenced by interest 
coupons. This deed gave Wilson power of sale in default of 
any of the payments to be made by Hall. 

On the 31st day of August, 1874, default having occurred 
in payments to be made by Hall, the lands named in the 
trust deed, embracing the land in controversy, were sold under 
the power in the trust deed, and Doty became the purchaser 
at the price of $7000, and a trustee's deed was made by Wil- 
son, conveying the same to Doty. 

According to the testimony of Mr. Young, (an agent for a 
firm in St. Louis, of which Dodd, the plaintiff in error, was 
a partner,) he, as such agent, about the last of February, 1875, 
called on Hall, seeking payment or security for an indebted- 
ness of Hall to that firm, amounting at that time to about the 
sum of $7000, and consisting of several promissory notes of 
Hall. Hall told Young that a man named Gibson held a 
title bond to 240 acres of land near by, on which Gibson was 
then living; that it was worth $50 per acre; that there was a 



1881.] Dodd v. Doty 395 



Statement of the case. 



deal between him and Gibson, by which he thought if Young 
would put in some cash, he (Young) could trade HalPs notes 
to Gibson for the bond, and if so, he could get a good title to 
the land from W. O. Britt. Young asked Hall whether Doty 
did not have a deed of trust upon this land, having so heard. 
Hall assured him that Doty had no claim upon the land 
whatever, and said he (Hall) had bought this land of Britt; 
that he was to make certain payments, which had been made, 
with the exception of $2500, and that Gibson had the bond 
then, and held it at the time of his transaction with Doty, and 
that Doty could not have any lien upon the land. After this 
they went together (after having examined the records) to 
the house on the land where Gibson was living, and looked 
at the land. Young asked Gibson if he had a title bond to 
this 240 acres of land, and Gibson said he had, and went to 
his desk, in Young's presence, unlocked it, and produced the 
title bond of Britt, above mentioned. On the back of the 
bond was an assignment of the bond, signed by Hall, and 
directing Britt to make the deed to the assignee, but the name 
of the assignee was not inserted, a blank space being left in 
the writing for the insertion of the same. Negotiations then 
ensued between Young and Gibson, which resulted in an 
agreement that Young should pay to Gibson, in cash, $1000, 
and to deliver to him the notes of Hall, and that Gibson 
should assign to him the title bond for this land. This was 
done. Gibson wrote his name on the back of the bond, 
indorsing it in blank, and Young drew upon his principals 
in St. Louis for the $1000, by two drafts, for $500 each, pay- 
able to the order of Gibson, one dated February 18, 1875, 
and the other March 5, 1875. Young, after giving Gibson 
the first draft, visited Britt at his residence, in Kentucky, 
and found the unpaid part of the purchase money mentioned 
in the bond, Avith interest, amounted to $2690, which he paid 
by a draft on his principals, and procured Britt to execute to 
Dodd a warranty deed, conveying these 240 acres 1 of land in 
fee to him, and this deed was placed on record, and Young, 



396 Dodd v. Doty. [May 

Statement of the case. 

on getting Britt's deed, returned to Illinois and gave Gibson 
the second draft, and in behalf of Dodd leased this land for 
one year to tenants, who went into possession about the 10th 
day of March, 1875. 

The title bond from Britt to Hall (which was assigned in 
blank by Hall, and also assigned in blank by Gibson, and 
under which bond and assignments Britt conveyed to Dodd,) 
bears date in May, 1869, and was acknowledged by Britt in 
June, 1869. The assignments upon the bond are without 
date. 

Gibson swears he never had any interest in the title bond 
or the land therein mentioned. He says the negotiation for 
the purchase took place entirely between Hall and Young; 
that Hall, at that time, had possession of the bond; that it 
never was assigned to him (Gibson), and that he never placed 
his name on the back of the bond, or authorized his name to 
be placed there, and that he received no part of the §1000 
paid by Young. 

This is a suit brought by Doty against Dodd, asking that 
Dodd be required to convey to him the lands conveyed to 
Dodd by Britt. 

The circuit court found that the assignment of the title 
bond to Dodd, and upon which he received a deed from Britt, 
was a fraud upon complainant, and decreed that Dodd convey 
the premises to Doty, and by the decree declared Doty to be 
the owner of the premises, and ordered that he should account 
for the rents and profits from March 10, 1875, to March 10, 
1878, and be charged therefor $1800. The decree further 
orders complainant to pay to Dodd the sum of $1000, without 
interest, the amount paid for the title bond, and the sum of 
$2690, without interest, the amount paid to Britt for his 
deed, and that from the sum of these amounts ($3690) the 
aforesaid sum of $1800 be deducted, and that complainant 
pay the balance to Dodd, — that is, $1890. The cause comes 
here upon writ of error, sued out by Dodd. 



1881.] Dodd v. Doty. 397 

Brief for the Plaintiff in Error. Opinion of the Court. 

Mr. Thomas G. Allen, for the plaintiff in error: 

There being no proof sustaining the allegations of fraud in 
the bill, the decree will be reversed. Davis v. Pickett, 72 111. 
484; Morris v. Tilson et al. 81 id. 607; Stacy v. Randall, 17 
id. 470; Be Wolf et al v. Long, 2 Gilm. 679. 

Hall having previously sold and conveyed the lands to 
William H. Davis, by a deed purporting to convey an estate 
in fee simple absolute, the after-acquired title inured to Davis, 
and for a like reason it inured from Davis to Given, from 
Given to Britt, and from Britt to Dodd. Kev. Stat. 1874, 
p. 272, sec. 7; King v. Gibson, Admr. 32 111. 352; Gochenour 
v. Mowry, 33 id. 331; Bybee v. Hageman, 66 id. 519; Welch 
v. Dutton et al. 79 id. 469; Van Rensler v. Kennedy, 11 

How. 629. 

i 

Mr. Chief Justice Dickey delivered the opinion of the 
Court : 

The bill in this case charges, in many ways, fraud, but no 
evidence in the record tends to sustain such charges as against 
plaintiff in error. Unless the supposed fraud mentioned in 
the decree be proven and brought home to plaintiff in error, 
his rights ought not to be affected thereby. It is not perceived 
that the fact of Hall having owned the land in controversy 
at a former date is of any significance in the case, for that 
title passed from him by warranty deed, duly recorded, as 
early as 1866. The fact that the index in the recorder's office 
was marred so that Doty failed to discover the record of this 
deed before taking the deed of trust to Wilson, can in no way 
impair the title of those holding under that deed, inasmuch 
as none of them are shown to have had anything to do with 
the making or marring of the index. 

If Doty took any interest in the lands in controversy by 
reason of the trust deed to Wilson, such taking can only rest 
upon the hypothesis that at that time (November, 1871,) Hall 
had an equitable interest in these lands under the title bond 



398 Dodd v. Doty. [May 

Opinion of the Court. 

made to him by Britt, in May, 1869, and which, by operation 
of that deed in such case, as between the parties, passed to 
Hall. 

The production of this bond shows, on the back, an assign- 
ment by Hall, which is not dated at all. In the absence of 
proof to the contrary, it is taken, in the indorsement in blank 
of commercial paper, that in making the indorsement the 
assignor adopted the date of the instrument assigned, — that 
is, prima facie, the same was assigned on the day it was made. 

Whether this rule be applicable on principle to the assign- 
ment of a bond of this kind or not, the burden of proof rests 
on the complainant to show that Hall had an interest in this 
land at or after the time of the making of the trust deed to 
Wilson, under which he claims. This is not shown by the 
proofs in the case. In fact, there is no proof in the case that 
Hall ever paid a dollar towards the purchase of this land 
from Britt, and no proof that he held any interest on or after 
the trust deed to Wilson. If Hall had at one time an interest 
under this bond, still, if such interest of Hall had passed 
from him long before the making of the trust deed, and at 
that time he was neither the owner nor the apparent owner of 
the property, complainant can have no relief. Young, the 
aeent of Doty, was assured by Hall that this was so at the 
time he bought the bond from Gibson, and there is no proof 
tending to contradict this hypothesis, except the testimony 
of Gibson. His prevarication as to the part taken by him in 
the sale of this bond, casts distrust upon his testimony, and 
the testimony of Young is clear, specific and consistent, and 
supported by the production of concurrent papers. It must 
be taken to be of at least as much weight as the testimony of 
Gibson. 

The burden of showing an interest in Hall at that date 
rested upon the complainant, and also of showing that de- 
fendant had notice of this equity at the time he bought the 
bond through Young. We think, the proofs all being con- 



1881.] Belleville Nail Co. v. The People ex reL 399 

Syllabus. 

sidered, the weight of the evidence does not sustain the claim 
of complainant in this regard. 

This seems to be a controversy between two innocent pur- 
chasers. In such case the mere proof of a secret equity in 
one party, of which the other had no notice, can not prevail 
against the legal title, honestly obtained. 

The decree is, therefore, reversed, and the bill dismissed. 

Decree reversed, 

Sheldon, J., dissents. 



The Belleville Nail Company 

v. 

The People ex reL H. G. Weber, Collector, Etc. 

Filed at Ml. Vernon November 11, 1880 — Rehearing denied May Term, 1881. 

1. Taxes — on personalty — when lien on real estate as against purchaser. A tax 
on personal property does not become a lien upon the real estate of the owner 
until the collector, on failure to collect the same, charges the same on such 
real estate in his application for judgment, and notice, — and after such real 
estate is conveyed by the owner his personal tax can not be charged against 
the land in the hands of his grantee, even though the grantee had notice at 
the time of his purchase of the existence of an unpaid personal tax. 

2. Same — judgment for — when conclusive. A judgment against a lot for 
taxes is not conclusive upon the owner, of the liability of the lot for the 
taxes, unless he appears and resists the application. If he does so, and con- 
tests the tax, the judgment will conclude him. 

3. Same — interest, penalties and costs on back taxes. Lands and lots are 
liable to back taxes, interest, penalty and costs, under section 129 of the 
Revenue law, when they have been forfeited to the State, whether such 
forfeiture was in due form or not. 

4. Same — on franchise and capital stock of corporation, a personal tax. The 
capital stock and franchise of a corporation are recognized by the statute 
as to be listed, valued and taxed as personal property, and the tax thereon 
becomes no lien on the real estate of the corporation until made so by the 
collector taking the proper steps to make it such. 



400 Belleville Nail Co. v. The People ex rel. [May 



Opinion of the Court. 



"Writ of Error to the County Court of St. Clair county; 
the Hon. Frederick H. Pieper, Judge, presiding. 

Mr. James M. Dill, Mr. A. S. Wilderman, and Mr. J. 

N. Perrin, for the plaintiff in error. 

Mr. Geo. W. Brockhaus, for the defendant in error. 
Mr. Justice Sheldon delivered the opinion of the Court: 

At the July term, 1879, of the county court of St. Clair 
county, the county collector of that county made application 
for judgment for the sale of sundry lots and lands for the 
respective amounts of taxes, special assessments, interest, 
penalties and costs appearing as delinquent against the lots 
and lands. The Belleville Nail Company appeared and filed 
objections. The court sustained some of the objections, and 
rendered judgment against the lots and lands for the residue 
of the amount of taxes, etc., returned as delinquent, as to 
which the objections were not sustained, and the Belleville 
Nail Company brings this writ of error. 

In the amount for which the judgment was rendered 
against lot 166, in a certain addition to Belleville, were 
included the sum of §1241.56, the personal property tax of 
1875, on the tangible property of the Belleville Nail Mill 
Company, and the sum of $1684.64, the tax of 1875, on the 
capital stock of that company. The Belleville Nail Mill 
Company and the Belleville Nail Company are different cor- 
porations. 

It appears, that on April 19, 1876, Edward Abend pur- 
chased said lot 166, at a trustee's sale thereof, made to him 
by D. H. Murray, trustee, under a deed of trust thereof to 
the latter from the Belleville Nail Mill Company, executed 
March 1, 1873; which deed from Murray to Abend was not 
recorded until March 8, 1877. On May 19, 1876, Abend 
sold and conveyed the lot to the Belleville Nail Company, by 



1881.] Belleville Nail Co. v. The People ex rel. 401 

Opinion of the Court. 

deed recorded May 20, 1876, and the latter company took 
actual possession of the lot immediately after the execution 
of the deed of Abend to the company, and has since 
remained in the possession of the same. 

The personal property tax of the Belleville Nail Mill 
Company was not a lien upon this lot 166 of that company, 
at least until the tax was charged against it by the action of 
the county collector; and the record discloses no action of 
the county collector in that regard until August 15, 1876, 
when, in the list of delinquent lands and lots returned by 
him to the county court, there appears the following, as 
against lot 166: "Personal property tax, including capital 
stock, which can not be made out of the personal property, 
and is charged on lot No. 166." This was not until some 
time after the purchase of lot 166 by the Belleville Nail 
Company. The collector's books for the taxes of 1875 
came to the collector's hands about January 1, 1876. 

Section 255 of the Revenue act declares: "Personal 
property shall be liable for taxes levied on real property, 
and real property shall be liable for taxes levied on personal 
property; but the tax on personal property shall not be 
charged against real property, except in cases of removals, 
or where said tax can not be made out of the personal prop- 
erty." 

Section 253 provides: "The "taxes assessed upon real 
property shall be a lien thereon, from and including the first 
day of May in the year in which they are levied, until the 
same are paid." 

By section 254: " The taxes assessed upon personal prop- 
erty shall be a lien upon the personal property of the person 
assessed, from and after the time the tax books are received 
by the collector." 

Section 183 provides: "When it becomes necessary to 
charge the tax on personal property against real property, the 
county collector shall select for that purpose some particular 
26—98 III. 



402 Belleville Nail Co. v. The People ex rel. [May 

ODinion of the Court. 

tract or lots of real property owned by the person owing 
such personal property tax; and in his advertisement for 
judgment and sale shall designate the particular tract or lots 
of real property against which such personal property tax is 
charged, and in the list filed for judgment the same facts 
shall be shown, and the court shall take cognizance thereof, 
and give judgment against such tract or lots of real property 
for such personal property tax." 

Said section 255, so far as cited, is the same as section 14 
of the Revenue act of 1853, which, as to this matter of lien, 
received a construction by this court in Schaeffer v. The 
People, 60 111. 179, where we said: "By no fair construction 
of that section does it create any lien on the real property for 
the tax levied on the personal property of the owner that 
can prevail against the rights of the subsequent purchaser;" 
and further on, "we are of opinion that no such lien is 
created by the 14th section of the act of 1853 as can be 
enforced against a subsequent purchaser without notice." 

There is some evidence in the case to the effect that the 
Belleville Nail Company knew that there were taxes due on the 
personal property of the Belleville Nail Mill Company which 
they believed were illegal, and that such tax should have 
been made out of personal property. This is insufficient 
evidence to show a charge of the personal property tax on 
real estate, so as to make it a lien thereon, and mere notice 
of the existence of an unpaid personal property tax against a 
grantor of real estate would not affect the grantee so as to 
charge the land in his hands with the payment of the tax, 
unless previous to his purchase the personal property tax had 
been made a charge on such real estate. 

As before observed, it does not appear that any step was 
taken to charge this personal property tax of the Belleville 
Nail Mill Company against this lot 166, until some time after 
the sale of the lot by that company and its purchase by the 
Belleville Nail Company. At the time, then, this latter com- 



1881.] Belleville Nail Co. v. The People ex rel. 403 

Opinion of the Court. 

pany purchased the lot, these personal property taxes were 
not a lien upon the lot, nor were the taxes in any manner 
chargeable upon the lot, and the lot in its hands is not liable 
for the payment of those taxes. 

It appears, that at the August term, 1876, of the county 
court, judgment was rendered against lot 166 for the per- 
sonal property taxes here in question, and also a like judg- 
ment at the August term, 1878. Without noticing the 
defects which are claimed to exist in these judgments, we do 
not hold them to be conclusive against the Belleville Nail 
Company of the liability of the lot for the payment of these 
taxes. The company did not appear and become a party in 
the proceedings in which those judgments were rendered, 
and make objections against their rendition; and we regard 
them as of no binding force against this company, and that 
it is open to the company to show here that the lot was not 
liable for the payment of said taxes, although such judgments 
were rendered. In Graceland Cem. Co. v. The People, 92 111. 
619, we held, where the owner of land appeared in such 
a proceeding, filed objections and contested the liability of 
his land for the tax claimed, that the judgment against the 
land for the tax was conclusive against him of the liability 
of the land for the tax, in a collateral proceeding. But it is 
only in the case of such appearance and defence that we 
regard the judgment as conclusive. 

The statute, in declaring, in section 224, that the 
tax deed made upon a sale under a judgment for taxes, 
shall be prima facie evidence of certain enumerated things 
which are requisite to a correct judgment, shows the 
intention of the statute that the judgment was not to 
have the same effect of conclusiveness which is given, 
collaterally, to ordinary judgments rendered by default, 
where personal service has been had. There is in these 
cases no personal service, but only publication of notice 
in a newspaper that application will be made for judgment. 

There are cross-errors assigned by appellee. 






404 Belleville Nail Co. v. The People ex rel. [May 



Opinion of the Court. 



There were back taxes proper against the lands and lots, 
and it is complained that the court sustained the objections 
made as to all penalties, interest and costs on taxes of pre- 
ceding years. 

By section 129 of the Revenue act it is provided: "In 
all cases where any real property has heretofore been or may 
hereafter be forfeited to the State for taxes, it shall be the 
duty of the clerk, when he is making up the amount of tax 
due on such real property for the current year, to add the 
amount of back tax, interest, penalty and printer's fees 
remaining due on such real property, with one year's interest, 
at ten per cent, on the amount of tax due, to the tax of the 
current year," etc. 

Section 229 provides: "The amount due on lands and 
lots previously forfeited to the State, and remaining unpaid 
on the first day of November, shall be added to the tax of 
the current year, * * * and the amount * * * 
shall be placed on the tax books, collected and paid over in 
like manner as other taxes." 

Section 277 is: "If the tax or assessment on property 
liable to taxation is prevented from being collected for any 
year or years, by reason of any erroneous proceeding or other 
cause, the amount of such tax or assessment which such 
property should have paid may be added to the tax on such 
property for any subsequent year, in separate columns, desig- 
nating the year or years." 

Real property is forfeited to the State, when, at any regular 
tax sale under the act, the collector shall offer the property 
for sale, and it shall not be sold for want of bidders, — then it 
shall, by provision of the statute, be forfeited to the State. 

There are evidently two cases contemplated here : one, 
under sections 129 and 229, where the property has been for- 
feited to the State, when interest, penalty, etc., are to be 
added to the back tax; the other, under section 277, where 
there has been no forfeiture to the State, in which case the 



1881.] Belleville Nail Co. v. The People ex rel. 405 

Opinion of the Court. 

back tax simply is to be added to the tax of a subsequent 
year. 

There is an admission in the case by the parties that there 
was no certified or other order of sale delivered to the 
collector prior to the sales of land for non-payment of taxes, 
for the years 1874, 1875, 1876 and 1877, respectively. It is 
to be taken, then, that there never was any preceptor process 
for the sale issued upon the judgments, and that the collector 
made the sales for the years for which the back taxes are 
charged and claimed to have been forfeited to the State, with- 
out such precept or process. 

Section 19 of the Revenue act contemplates that there 
shall be a process for the sale, and prescribes what the process 
shall be. It is contended that such a sale, or offer of land 
for sale, without process, would be a nullity, and so would 
not be one where there could be the forfeiture of the property 
to the State contemplated by the statute; and hence, that 
sections 129 and 229, relating to lands forfeited to the State 
for taxes, do not apply here, but that the section applying to 
this case is 277, where there is to be no addition to the back 
tax of penalty, interest and printer's fees. 

A majority of the court hold that it was sufficient that 
there had been, in fact, a forfeiture of the lands and lots 
to the State, whether in due form or not. See People v. 
Smith, 94 111. 226. This assignment of cross-error is sus- 
tained. 

It is also complained by appellee, that the court below sus- 
tained the objection as to the capital stock tax against the 
Belleville Nail Mill Company of 1874, amounting to $997.47. 
It is said this- is a tax on the franchise and the real and 
personal property of the corporation, and should be held as 
being one against the lot, and so a lien upon it. It is sufficient 
to say, that the capital stock and franchise of a corporation 
are recognized by the statute as to be listed, valued and taxed 






406 ' Peesser v. The People. [May 

Syllabus. Statement of the case. 

as personal property. Revised Statutes 1874, ch. 120, §§ 3, 7, 
34. There was no error in this regard. 

The judgment as respects the lots and lands as to which 
objections were filed by the Belleville Nail Company, is 
reversed and the cause remanded. 

Judgment reversed. 



Hermann Presser 
The People of the State of Illinois. 

Ml. Vernon, May Term, 1SS1. 

Practice in the Supreme Court — -failure to file briefs in proper time. In 
criminal cases, the Supreme Court, will not affirm the judgment of the court 
below merely because the plaintiff in error may have failed to file his briefs 
within the time prescribed by the rule on that subject. 

Writ of Error to the Criminal Court of Cook county. 

Presser was indicted in the Criminal Court of Cook county, 
on the charge that he "did unlawfully belong to and parade 
with an unauthorized body of men with arms, who had asso- 
ciated themselves together as a military company and organi- 
zation without having any license from the Governor of the 
State of Illinois, and not then and there being a part of nor 
belonging to the regular organized volunteer militia of this 
State or the troops of the United States." Upon a trial in 
the court below, there was a judgment of conviction and a 
fine of ten dollars imposed upon the defendant. Thereupon 
he sued out this writ of error. Briefs for the plaintiff in 
error were not filed within the time prescribed by rule 35 of 
this court. 



1881.] Smith v. The People. 407 

Syllabus. Statement of the case. 

Mr. James McCartney, Attorney General, for the People, 
entered a motion to affirm the judgment of the court below, 
for non-compliance with the rule in respect to the time for 
filing briefs. 

Scott, J.: It has not been the practice in this court to 
apply the rule as strictly in criminal cases as we do in civil 
cases. In this case it appears, that since the entering of the 
motion the brief for the plaintiff in error has been filed, and 
the case will be taken for consideration when it is reached 
upon the call of the docket. 

The motion to affirm the judgment because of the failure 
of the plaintiff in error to file his brief within the time pre- 
scribed by the rule, will be denied. 

Motion denied. 



William Smith 

v. 

The People of the State of Illinois. 

Ml. Vernon, May Term, 1881. 

Writ of error to an Appellate Court — in criminal cases. Writ of error to 
bring in review criminal cases below the grade of felony, can issue, in the 
first instance, only out of an Appellate Court, under section 88 of the Prac- 
tice act, as amended in 1879; but a judgment of affirmance in an Appellate 
Court, in a case within that class, may be reviewed in the Supreme Court on 
writ of error to the Appellate Court. . 

Writ of Error to the Appellate Court for the Fourth 
District. 

This was a prosecution instituted in the county court of 
White county, against Smith, upon the charge of resisting an 
officer. A trial in the county court resulted in the convic- 
tion of the defendant, whereupon the court imposed a fine of 



408 Smith v. The People. [May 

Opinion of the Court. 

$15, and sentenced the defendant to imprisonment in the 
county jail for one hour. The defendant thereupon appealed 
to the Appellate Court, where the judgment of the county 
court was affirmed. The case is brought to this court for 
review, upon writ of error to the Appellate Court. 

Mr. James McCartney, Attorney General, for the People, 
moved to dismiss the writ of error, upon the ground of a 
want of jurisdiction in this court. 

Mr. R. A. D. "Wilbanks, for the plaintiff in error, contra. 

Scholfield, J.: The motion to dismiss the writ of error 
must be denied. Section 11 of article 6 of the constitution 
of 1870, providing for the creation of " inferior appellate 
courts," declares that writs of error shall lie to such courts 
from this court "in all criminal cases." This is a criminal 
case, though below the grade of felony. The writ of error 
to the Appellate Court, in such cases, is a writ of right, under 
the constitution, of which the party can not be deprived by 
legislation. Section 88 of the Practice act, as amended in 
1879, requires " all criminal cases below the grade of felony," 
to be taken directly from the trial courts to the Appellate 
Court, but this requirement does not operate to deprive the 
party charged with any criminal offence of his right to a 
writ of error from this court, nor does it take away the juris- 
diction of this court to entertain the writ. In this regard 
the statute merely constitutes the Appellate Court an inter- 
mediate court of review, whose decisions are not final in 
this class of cases. 

Motion denied. 



1881.] Goeppner et al. v. Leitzelmann, Admx. 409 

Syllabus. Statement of the case. 



Sophia Goeppner et ah 

v. 

Hannah Leitzelmann, Admx. 

Filed at Mt. Vernon May 11, 1881. 

1. Administration of estates^ — allowance of claim — whether conclusive 
upon the heirs. The allowance of a claim against an estate, in an ex parte 
proceeding in the county court, is not necessarily conclusive upon the heir. 
The judgment against the administrator is only prima facie evidence, as 
against the heir, and is open to investigation on an application for an order 
to sell the land of the heir for its payment. 

2. Same — where administrator collects rents — in what capacity chargeable. 
Although the heir may question the right of the administrator to collect rents 
arising from the real estate, and claim any money received by the adminis- 
trator on that account as his own, yet, if the heir choose to treat the money so 
received by the administrator as in his hands for the payment of debts, the 
latter can not complain if he is charged therewith, on an application to sell 
the land of the heir to pay the debts of the estate. 

Writ of Error to the Appellate Court for the Fourth 
District; the Hon. Tazewell B. Tanner, presiding Justice, 
and the Hon. James C. Allen and Hon. George W. Wall, 
Justices; — heard in that court on appeal from the Circuit 
Court of Jasper county; the Hon. John H. Halley, Judge, 
presiding. 

Joseph Leitzelmann died in March, 1874, leaving a widow, 
Hannah Leitzelmann, and the following children: Maggie 
Boos, Sophia Goeppner, and Joseph Leitzelmann, Jr., his 
only heirs at law. Mrs. Leitzelmann was appointed admin- 
istratrix. 

At the February term, 1877, of the county court, Hannah 
Leitzelmann filed her petition for the sale of real estate to 
pay debts, alleging that she had rendered "a just and true 
account of the personal estate and of the debts of the 
deceased," and attached thereto a statement purporting to be 
a statement of the true condition of the estate. The proceeds 



410 Goeppner et al. v. Leitzelmann, Admx. [May 

Statement of the case. 

of the personal estate described in the inventory amounted 
to $2833.23, and the debts and demands allowed against 
the estate amounted to $11,974.66. She further alleged that 
she had applied the proceeds of the personal estate toward 
the payment of debts, and then set out a list of real estate, 
of which, it was alleged, Joseph Leitzelmann had died 
seized. 

The petition also showed that Maggie Boos had died, 
leaving surviving her two children, her only heirs at law, 
Francis P. Boos and Joseph A. Boos, who were minors. 
These children and grand children were made parties defen- 
dant to the petition, as well as Joseph Boos, the guardian of 
these minors. 

Joseph Leitzelmann, Jr., one of the heirs of deceased, 
made no defence. Answers were filed by Mrs. Goeppner, 
and in behalf of the minor grand children. 

Included in the list of claims allowed against the estate 
were two items which were disputed by these defendants. 
One is a claim allowed in favor of Joseph Leitzelmann, Jr., 
of $1800, and the other a claim allowed in favor of Hannah 
Leitzelmann (the administratrix), of $5330. The other 
claims were not questioned. 

In the answer of these contesting defendants it was charged 
that the administratrix had not made " a full and perfect 
inventory of the goods of the estate/' but they alleged that 
Joseph Leitzelmann, at his death, was the owner of a large 
amount of personal property which was not included in the 
inventory, amounting, as they claimed, in value to about 
$3150, and charging that the administratrix had dishonestly 
and fraudulently omitted the same from the inventory, and 
converted the same to her own use; and the answer further 
charged that the claim in behalf of Mrs. Leitzelmann of 
over $5000 was fraudulent, false and fictitious, and had no 
foundation in fact, and that the claim allowed in favor of 
Joseph Leitzelmann, Jr., was not just, and that the adminis- 
tratrix had fraudulently allowed the same against the estate. 



1881.] Goeppner et al. v. Leitzelmann, Admx. 411 

Statement of the case. 

It was also charged in the answers that after the death of 
Joseph Leitzelmann, Sr., the administratrix had received a 
large amount of money for the rent of certain real estate that 
belonged to the estate, which she had converted to her own 
use, and that Joseph Leitzelmann, Jr., had received a large 
amount of money from the rents of property belonging to the 
estate, which ought to be charged against him, and applied 
in satisfaction of whatever claim he really had, if any, 
against the estate. And it was insisted in the answer that it 
was not necessary to sell any of the real estate to pay the 
real debts. 

This controversy was brought to a hearing in the county 
court, a default being entered against Joseph Leitzelmann, Jr., 
and upon the hearing of the evidence, all of which was pre- 
served' in the bill of exceptions, the county court found " that 
said petitioner, as administratrix, had not made a just and 
true account of the condition of the estate of the said deceased 
to this court, and that, of the personal estate of the deceased, 
the administratrix had omitted from the inventory, and con- 
verted to her own use, personal property of the estate, in the 
aggregate of the value of $1095." 

The court further found, that of the claim allowed in favor 
of the said Hannah Leitzelmann against the estate, to the 
amount of $5330, there was improperly allowed the sum of 
$4330, and that the true amount should have been the sum 
of $1000. 

The court further found, that the administratrix had re- 
ceived and appropriated to her own use, personally, and not 
as administratrix, rents and profits arising from certain por- 
tions of the real estate, since the death of her intestate, the 
sum of $690.29, and that the just amount of her claim against 
the estate had been fully paid. 

The court further found, that Joseph Leitzelmann, Jr., had 
received rents and profits of the real estate of deceased, since 
his death, in the sum of $429.29, which ought to be credited 
upon the claim allowed him against the estate. 



412 Goeppner et al. v. Leitzelmann, Admx. [May 

Brief for the Plaintiffs in Error. 

The court, therefore, found that the personal property was 
not sufficient for the payment of the just debts, and that the 
deficiency amounted to about the sum of $2698.62, and accord- 
ingly ordered a sale of so much of the real estate as should 
be necessary to pay that amount. 

From that decree Mrs. Leitzelmann, as administratrix, 
took an appeal to the circuit court. In the circuit court the 
case was tried before the court, by consent, upon the evidence 
preserved in a bill of exceptions containing all the evidence 
before the county court. 

The circuit court found there was due to Mrs. Leitzelmann 
the sum of $2800, exclusive of the widow's allowance. That 
court also found the entire indebtedness of the estate, exclu- 
sive of the widow's allowance, to be $9440.66; that the avail- 
able proceeds from the property inventoried amounted to 
$2833.23; that the administratrix had failed to put in the 
inventory personal property of the estate amounting in value 
to $962, making the assets of the estate in her hands for the 
payment of debts equal to $3795.23, and that the deficit 
necessary to pay debts was $5645.43. Therefore, the court 
entered an order and decree that the administratrix should 
proceed to sell so much of the real estate mentioned in the 
record of the county court as should be necessary to pay this 
indebtedness, with costs of suit. 

To that decision of the circuit court the heirs contesting 
the claim of the administratrix excepted, and appealed from 
the judgment of the circuit court to the Appellate Court. 
The cause was heard upon the record in the Appellate Court, 
and the decree of the circuit court was there affirmed, and the 
contesting heirs bring the case to this court on error, for 
review. 

Mr. James W. Gibson, for the plaintiffs in error: 
Where an administrator applies for leave to sell real estate 
for the purpose of paying claims allowed against the estate 
of his intestate, the allowance of such claims is not conclu- 



1881.] Goeppner et al. v. Leitzelmann, Admx. 413 

Brief for the Defendant in Error. Opinion of the Court. 

sive as against an heir, and he may dispute the indebtedness. 
Stone v. Wood, 16 111. 177; Hopkins v. McCann, 19 id. 113; 
Rosenthal v. Renick, 44 id. 207; Helm v. Cantrell, 59 id. 524; 
Gibson et al. v. Gibson et al. 82 id. 61. 

The widow is chargeable with the rents and profits received 
by her from the estate, because the rents go to the heirs. 
Foltz, Admr. v. Prouse, 17 111. 487. And the heirs may show 
that the administrator has received rents and profits from the 
occupation of decedent's estate more than sufficient to pay the 
debts due from the estate. Borman v. Lane, 1 Gilm. 143. 

Mr. D. B. Bpown, and Mr. J. M. Honey, for the defend- 
ant in error : 

We concede the right of the heirs in this case to resist the 
claim allowed by the county court, but the law is that the 
allowance of the claim by the county court is prima facie 
evidence of its correctness, and it rests with the heirs to 
show that the claim was erroneously allowed. Stone v. Wood, 
16 111. 177. . And the heirs have only the right to contest the 
validity of the claim, [Gibson et al. v. Gibson etal. 82 111. 61,) 
not to review the entire administration of the estate, as is 
attempted to be done here. 

The administratrix could not receive rents from the land 
of the estate in her capacity as administratrix, but only as an 
individual, — therefore, she is not chargeable with rents re- 
ceived, in this proceeding. 

Mr. Chief Justice Dickey delivered the opinion of the 
Court: 

It is insisted in behalf of the plaintiffs in this court, that 
the appeal taken from the county court to the circuit court 
was not taken in the mode prescribed by law, and hence that 
the circuit court erred in refusing to dismiss the appeal. 
From the view we take of this case it is unnecessary to pass 
upon that question. 



414 Goeppner et al. v. Leitzelmann, Admx. [May 

Opinion of the Court. 

We have examined with care the evidence in this case, and 
we are persuaded that the findings of the county court were 
substantially correct, and hence upon the hearing in the 
circuit court the judgment of the county court should have 
been affirmed. 

The evidence preserved in the record is very voluminous, 
and arranged in a manner so inartistic as to render its inves- 
tigation a work of great labor. The abstract and arguments 
of counsel in the case have given us but little aid in this 
respect. After a careful investigation, however, of the testi- 
mony, as found in the record, it is plain that the administra- 
trix fell far short of doing her duty in the statement of the 
assets in the inventory to the county court, and she attempted 
a gross wrong upon the estate in her claim for over 
$5000 .against the estate. For this reason alone the 
county court might, with great propriety, have dismissed 
her petition for the sale of real estate. Inasmuch, however, 
as the contesting heirs did not appeal from the decision of the 
county court, it is not necessary that we should disturb the 
judgment of the county court directing the sale of real 
estate. The only matter contested in the circuit court was 
that of the extent of the true liabilities of the estate. It 
could serve no good purpose were we to discuss in detail the 
proofs bearing upon these issues. We content ourselves with 
saying that we think they sustain the finding of the county 
court. 

In the ex parte proceeding in adjusting the claims to be 
allowed against the estate, the allowance to Hannah Leitzel- 
mann was §5330. It is here strenuously insisted by her 
counsel that the allowance of the claim, in the ex p arte pro- 
ceeding before the county court, was conclusive, and that the 
heirs in this proceeding could not call it in question. That 
position was taken in the case of Gibson v. Gibson, 82 111. 62, 
and it was in a like proceeding. It was there said, the heir 
has a right to contest the claims. "The judgments against 
the administrator being only prima facie evidence against the 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 415 

Syllabus. 

heir, they were open to investigation, on this bill to subject 
the land of the heir to their payment." 

It is also insisted by counsel for defendant, that she is not 
chargeable with the amount of rents which she had collected 
from the real estate of deceased after his death, and this upon 
the ground that she received them personally, and not as 
administratrix. While it may be true that the heirs might 
question her right to thus receive rents of the estate, and 
claim the money as their own, still, if they choose to treat 
such moneys as in her hands for the payment of debts of the 
estate, she can not complain if she is charged therewith. The 
allowance of such a claim against an administrator was sus- 
tained in the case of Dorman v. Lane, 1 Gilm. 143. 

The judgment of the Appellate Court is, therefore, reversed, 
and the cause remanded, with directions to reverse the judg- 
ment of the circuit court and remand the cause to the circuit 
court, that the judgment of the county court may be there 
affirmed. 

Judgment reversed. 



The City of East St. Louis 

v. 

The East St. Louis Gas Light and Coke Company. 

Filed at Mi. Vernon February 3, 1881 — Rehearing denied May Term, 1881. 

1. Municipal corporations — contracts ultra vires — extent of liability thereon. 
Although there may be a defect of power in a corporation to make a con- 
tract, yet if a contract made by it is not in violation of its charter, or of any 
statute prohibiting it, and the corporation has by its promise induced a party 
relying on the promise and in execution of the contract, to expend money 
and perform his part thereof, the corporation will be liable on the contract. 

2. Same — application of the rule— former decision. This doctrine was applied 
in its full extent in the case of Bradley v. Ballard, 55 111. 413, though that 
being the case of a private corporation, it was there said there might be a 



416 E. St. Louis v: E. St. L. G. L. & C. Co. [May 



Syllabus. 



difference with respect to municipal corporations, and that their debts illegally 
contracted by their officers would not be binding upon tax-payers. 

3. However, where the contract of a municipal corporation has no element 
of illegality, the objection made to it only alleging a defect of power in 
respect to the term of its duration, the doctrine that where a corporation has 
received benefits under a contract which is merely ultra vires, it shall pay for 
those benefits, should apply to the municipal corporation with equal force as 
in any case of a private corporation. 

4. Same — of a contract by the city of East St. Louis to light its streets loith, 
gas. The city of East St. Louis entered into a contract with a private cor- 
poration which was organized for the purpose of the manufacture of gas, for 
the lighting of the streets of the city for a period of thirty years. In pur- 
suance of the terms of the contract, the gas company extended its main pipes 
and erected lamp-posts from time to time, as provided by ordinances of the 
city, and for several years, without objection on the part of the city, furnished 
gas for the lighting of the streets. In a suit by the gas company against the 
city to recover for gas previously furnished under the contract, it was 
objected on the part of the city that the contract was ultra vires, — that its 
term of duration was such as to operate as an improper abridgment of the 
legislative or governmental power of the city over the subject, and therefore 
the contract was not binding on the city, and there could be no recovery. 
"Without determining whether the contract could be upheld in that respect, it 
was held, that as the objection did not question the legality of the contract, 
but only alleged a defect of power as to the period of its duration, it would 
apply only to the executory part of the contract, not to that part which had 
been executed. So the city was liable for the gas which had been furnished to 
it prior to the bringing of the suit. 

5. Same — of the power to contract generally. By its charter, the city of 
East St. Louis was given power to contract and to be contracted with, to sue 
and to be sued, etc. It was also given power to provide for lighting the 
streets of the city; — and to make all ordinances necessary to carry into 
effect the powers vested by the charter in the city. A private corporation 
created by the legislature of this State, was also given power to contract and 
be contracted with, and to manufacture and sell gas for lighting the streets 
of the city of East St. Louis, and was given the exclusive privilege of sup- 
plying the city with gas for a period of thirty years. It was held, not only 
had the city the general power to make a contract in the execution of the 
authority given it to provide for lighting its streets, but the contracting with 
this particular private corporation was given sufficient sanction by the 
express provisions of its charter on that subject. 

6. Same — constitutional limitation as to creating indebtedness. Where a city 
entered into a contract for lighting its streets for a term of thirty years, the 
agreed price therefor to be paid monthly, which sum for any one year was not 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 417 



Brief for the Appellant. 



in excess of the limitation in sec. 12, of art. 9, of the constitution, but, taken 
for the whole term, was in excess of the debt it was authorized to incur, it 
was held, that the contract was not prohibited by the constitutional provision, 
but was legal and binding, there being created no present indebtedness for 
the whole sum, but only as the gas should be supplied from month to month. 

Appeal from the Appellate Court for the Fourth Dis- 
trict; — the Hon. Tazewell B. Tanner, presiding Justice, 
and the Hon. James C. Allen, and Hon. David J. Baker, 
Justices; — heard in that court on appeal from the Circuit 
Court of St. Clair county, the Hon. William H. Snyder, 
Judge, presiding. 

Mr. M. Millard, and Mr. J. M. Freels, for the appellant : 

The only authority of the city to provide for the erection 
of lamp-posts and lighting. the streets is found in art. 3, sec. 
5, paragraph 6, vol. 1, Priv. Laws 1869, p. 889. 

The power conferred is one of a public and continuing 
nature, and must be exercised by ordinance, and not by con- 
tract. The contract in question is not authorized by any 
provision of the charter, and is in conflict with its general 
purpose and policy, and illegally suspends the operation 
of the legislative and other powers of the common council 
for the period of ten years, and is contrary to public policy. 
25 Conn. 20, 39, 40; 12 Abb. Rep. 360, 378; Presbyterian 
Church v. City of New York, 5 Co wen, 538 ; Goates v. Mayor, 
etc. of New York, 7 id. 585; Milhau v. Sharp, 17 Barb. 435; 
Milium v. Sharp (in Court of Appeals), 27 K Y. 611; State 
v. Cincinnati Gas Co. 18 Ohio St. 262; Dillon on Mun. 
Corp. sees. 371, 372; Gale v. The Village of Kalamazoo, 23 
Mich. 344; Butler v. Mayor of New York, 31 How. Prac. 
Pep. 251 ; Mayor and Aldermen of the City of Jackson v. 
Bowman, 39 Miss. 671 ; Gozzler v. Corporation of Georgetown, 
6 Wheat. 593; East Hartford v. Hartford Bridge Co. 10 
How. 535 ; Bams v. Mayor of New York, 14 N. Y. 506 ; 
Richmond County Gas Light Co. v. Middletown, 59 N. Y. 228 ; 
1 Dillon on Corp. sees. 253, 254, 256, 257, 259, 296; Thompson 



418 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Brief for the Appellant. 

v. Schemmerhorn, 6 N. Y. 92; State ex rel. v. Cincinnati Gas 
Light Co. 18 Ohio St. 290; Illinois and St. Louis Railroad 
and Canal Co. v. City of St. Louis, 2 Dill. Circuit Court Eep. 
71 ; Harlem Gas Co. v. Mayor of New York, 33 N. Y. 307; 
Bradley v. Mayor, 20 id. 312. 

A city can not be held liable for a contract made by the 
municipal officers in violation of law. Fox v. New Orleans, 
12 La. Ann. Eep. 154. 

Contracts to violate the charter or to bargain away or 
restrict the free exercise of legislative discretion vested in the 
municipality or its officers, in reference to public trusts, are 
void. See action against Bowman, 35 Miss. 671 ; 1 Dillon 
on Mun. Corp. sec. 372; Munsell v. Temple, 3 Gilm. 93. 

The principle is well settled, that the powers conferred 
upon a municipal corporation constitute a trust to be exercised 
for the public good, and can not be delegated, embarrassed, 
bartered away, or impaired by contract. Dillon on Mun. 
Corp. sec. 64; Cooley's Const. Lim. 206; State v. Mayor of 
New York, 3 Duer, 131. 

It will be seen from the foregoing authorities, that the 
principle, that the officers of a municipal government can 
not bind their successors by any acts which tend to limit the 
exercise of the powers conferred by the charter of the cor- 
poration, has been applied to the following powers, analo- 
gous in their character to the one in question : 

The power to control and regulate the public streets — Davis 
v. The Mayor of New York, 14 N. Y. 506 ; Milhau v. Sharp, 
27 id. 611 ; The State v. The Cincinnati Gas Light and Coke 
Co. 18 Ohio St. 262. The power to regulate the grading and 
leveling of the streets — Gozzler v. Georgetown, 6 Wheat. 593; 
Reynolds v. Shreveport, 13 La. Ann. Eep. 426. The power 
to provide for the cleaning and sweeping of public streets — 
Britton v. The Ma y or of New York, 21 How. Prac. 251. 
The power to provide for and regulate public markets — Gale 
v. Kalamazoo, 23 Mich. 344. The power to regulate and 
control the public wharves — Rlinois, etc. Canal Co. v. St. 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 419 

Brief for the Appellant. 

Louis, 2 Dill. Circuit Court Rep. 70. A power identical 
with the one in question, namely, the power to cause the 
public streets to be lighted — Richmond County Gas Light Go, 
v. Middletovm, 59 N. Y. 228. 

A municipal corporation may successfully interpose the 
plea of ultra vires, — that is, set up as a defence its own want 
of power, under its charter or constituent statute, to enter 
into a given contract, or to do a given act in violation or 
excess of its corporate power and authority. The cases 
asserting these principles are numerous and uniform. Some 
of the more important and striking ones only need be cited. 
May r or of Albany v. Gunliff, (city not liable for negligently 
building bridge, under an unconstitutional statute,) 2 Comst. 
(N. Y.) 165 (1849); reversing same case, 2 Barb. 190; Guy- 
ler v. Trustees of Rochester (laying out street contrary to 
charter), 12 Wend. 165 (1834) ; Hodges v. Buffalo (4th July 
appropriation), 2 Denio, 110 (1846) ; Halstead v. The Mayor, 
3 Comst. 430 (1850); Martin v. The Mayor, 1 Hill, 545; 
Boone v. Utica, 2 Barb. 104; Cornell v. Guilford, 1 Denio, 
510; Boyland v. The Mayor and Aldermen of New York, 
1 Sandf. (N. Y.) 27 (1847); Bill v. Wareham, 7 Mete. 438 
(1844); Vincent v. Nantucket, 12 Cush. 103 (1858), per Mer- 
rick, J.; Stetson v. Kempton, 13 Mass. 272; Parsons v. 
Lnhabitants of Goshen, 11 Pick. 396; Wood v. Lnhabitants of 
Lynn, 1 Allen (Mass.), 108 (1861); Spalding v. Lowell, 23 
Pick. 71; Mitchell v. Rockland, 45 Me. 496 (1858); same 
case, 41 id. 363; Anthony v. Adams, 1 Mete. (Mass.) 284 
(1840); Western College v. Cleveland, 12 Ohio, 375 (1861); 
Commissioners v. Cox, 6 Ind. 403 (1855); TJie Lnhabitants v. 
Weir, 9 id. 224 (1857); Smead v. The Lndianapolis, Pitts- 
burgh and Cleveland Railroad Co. 11 id. 104 (1858) ; Brady 
v. The Mayor, 20 N. Y. (6 Smith) 312; Appleby v. The 
Mayor, etc. 15 How. Prac. 428; Estep v. Keokuk Co. 18 Iowa, 
199, and cases cited by Cole, J. ; Clark v. Polk County, 19 
Iowa, 248; Clark v. City of DesMoines, 6 Am. Law Regis- 
ter, 149. 



420 E. St. Louis v. E. St. L. G. L. & C. Co. [May 



Brief for the Appellee. 



Appellee claims that an interest bearing indebtedness is 
what the constitution was intended to prohibit; but that is 
not the doctrine of this court, as is well known. Springfield 
v. Edwards, 84 111. 626 ; Law v. People, etc. 87 id. 385; New 
Orleans v. Clark, 95 U. S. 652. 

Mr. E. A. Halbert, Mr. John B. Bowman, and Mr. C. 
F. JSketling, for the appellee : 

As to the general powers of municipal corporations to make 
contracts to carry out the powers expressly conferred, counsel 
cited many authorities, among which are Cooley Const. Lim. 
205; Dillon on Mun. Corp. sees. 371, 372; Douglas v. Vir- 
ginia City, 5 ISTev. 147; Tucker v. Virginia City, 4 id. 207; 
Reynold v. Com'rs of Staidc Co. 5 Ohio, 204; Allen v. Cerro 
Gordo Co. 34 Iowa, 54; City of Galena v. Corwith, 48 111. 
423; People v. Hurlbut, 24 Mich. 103; Board of Park Com. v. 
Detroit, 28 Mich. 237; Bailey v. New York, 3 Hill, 531 ; Small 
v. Danville, 51 Me. 361 ; Philadelphia v. Fox, 64 Penn. St. 
180; Western College v. Cleveland, 12 Ohio K S. 375; 
Western Saving Fund Society v. Philadelphia, 31 Penn. sec. 
183; San Francisco Gas Co. v. San Francisco, 9 Cal. 453; 
Oliver v. Worcester, 102 Mass. 499; Dillon on Mun. Corp. sec. 
39; Moodalay v. East India Co. 1 Brown's Ch. R. 469; State 
v. Tappan, 29 Wis. 664; Atkins V. Randolph, 31 Vt. 226; 
People v. Mayor of Chicago, 51 111. 30; DeVoss v. Richmond, 
18 Gratt. 338; Lloyd v. Mayor of New York, 5 N. Y. (1 Seld.) 
374; Touchard v. Touchard, 5 Cal. 306; Rochester White 
Ijead Co. v. City of Rochester, 3 N. Y. 466; Bailey v. New 
York, 3 Hill, 531; Wheeler v. City of Philadelphia, 77 Penn. 
St. 374. 

It is contended that the power to provide for lighting the 
streets is a governmental power, because it is required to be 
exercised by ordinance. The usual mode by which cities 
may contract, is by ordinance. Dillon on Mun. Corp. sees. 
373, 374 ; People v. San Francisco, 27 Cal. 655. And when 
the charter points out the mode, it must be pursued in making 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 421 

Brief for the Appellee. 

contracts, and when thus made it can be changed only by a 
vote of the council. Terre Haute v. Lake, 43 Ind. 430; In- 
dianapolis v. Bly, 39 id. 373. 

Where a city contracts in its corporate capacity through 
its officers, acting by authority of an ordinance of the com- 
mon council, the city is not at liberty to annul the contract 
so made by an ordinance repealing the one authorizing the 
contract. Having made the law the city is bound by it. 
State v. Heath, 20 La. Ann. 1721. 

It has no* more rights in that respect than an individual. 
Hewitt v. Town of Alton, 7 N. H. 257; Western Saving So- 
ciety v. Philadelphia, 31 Pa. St. 175; Pr other v. New Orleans, 
24t La. Ann. 41 ; Davenport Gas Co. v. Davenport, 13 Iowa, 
233. 

The right to borrow money does not nullify the power of 
a corporation to pay its debts, or provide for their payment 
at a future day. This power is a vital one. Mills v. Gleason, 
11 Miss. 470; Dean v. City of Madison, 7 Wis. 68S; Williams- 
port v. Commonwealth, 84 Pa. St. 487 ; Bank v. Chillicothe, 7 
Ohio, 221; Clark v. School District, 3 R. I. 197; Sheffield v. 
Andress, 56 Ind. 157; Tucker v. Raleigh, 75 N. C. 367; 
Douglas v. Virginia City, 5 Nev. 147 ; Sturtevant v. Alton, 
3 McLean, 393; Lexington v. Butler, 14 Wall. 282. 

As to the power of a city to create a debt, payable in the 
future, to carry out a given power, counsel cited Gale v. 
City of Kalamazoo, 23 Mich. 344; Ketchum v. City of Buffalo, 
14 K Y. 351; Grant v. Davenport, 36 Iowa, 396; Swartz v. 
Flatboats, 14 La. Ann. 244; Brown v. Duplessis, 14 id. 842. 

The constitutional provision does not apply to such a case 
as this. There was no debt except at the end of each month. 
At the time the city made this contract, it might lawfully 
have incurred an indebtedness of $20,000. On the ground 
assumed by the appellant, that a debt of over $300,000 was 
incurred by making the contract, twenty thousand of the 
debt would have been valid. It would only have been void 
in so far as it was in excess of the power to contract a debt. 



422 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Opinion of the Court. 

McPherson v. Foster, 43 Iowa, 48. See, also, Wiley. v. SHU- 
man, 62 111. 170; Marshall v. Silliman, 61 id. 218; Grant v. 
City of Davenport, 36 Iowa, 401 ; JDively v. Cedar Rapids, 
27 id. 227. 

If a contract made by a corporation is not in violation of 
the charter of the corporation or some statute prohibiting it, 
and the corporation has by its acts induced a party, relying 
upon such promise and in execution of the contract, to expend 
money and perform his part of the contract, the corporation 
is liable on the contract. State Board of Agriculture v. 
Citizens 7 Street By. Co. 47 Ind. 427. See, also, Bridge Co. v. 
Frankfort, 18 B. Monroe, 41; San Francisco Gas Co. v. San 
Francisco, 9 Cal. 453; Argentine v. San Francisco, 16 id. 655. 

The rule as to executed contracts ultra vires is, that by the 
plainest rules of good faith they should generally be allowed 
to stand. 2 Kent, (11th ed.) 1 p. 331 — note; Parrish v. 
Wheeler, 22 N. Y. 258 ; Argentine v. San Francisco, supra. 

A. municipal corporation having received benefits at the 
expense of the contracting party, it can not object that it was 
not empowered to perform what it promised in return, in the 
mode in which it promised to perform. Hitchcock v. Galves- 
ton, 6 Otto, 349. 

Although there may be a defect of power in a corporation 
to make a contract, yet if a contract made by it is not in vio- 
lation of its charter or of any statute prohibiting it, and the 
corporation has by its promise induced a party, relying on 
the promise in executing the contract, to expend money and 
perform his part thereof, the corporation is liable on the 
contract. State Board of Agriculture v. City Street Ry. Co. 
47 Ind. 407. 

Mr. Justice Sheldon delivered the opinion of the Court: 

This was an action brought by the East St. Louis Gas 
Light and Coke Company against the city of East St. Louis, 
for money claimed to be due under a contract entered into 
between the parties on the 3d day of October, 1874, in pur- 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 423 

Opinion of the Court. 

suance of an ordinance of the city council directing it, by 
which the gas light company agreed to extend its street main 
pipes within the present and future limits of the city, when- 
ever and wherever the city should order public lamps to be 
erected, upon connecting lines, not less than one lamp for 
every 125 feet of street main, and that the company should 
erect lamp-posts and furnish gas for the sum of $35.20 per 
lamp per year, to be paid in monthly installments, upon bills 
therefor rendered by the company. Two hundred lamps were 
to be furnished at once along the then present main pipes of 
the company, which were accordingly furnished, and were 
first lighted in November and December, 1874, and have 
been kept lighted ever since. On November 10 and Decem- 
ber 17, 1875, ordinances were passed by the city council 
requiring severally the erection of additional public lamps, 
and the extension accordingly of the company's street main 
pipes; and in pursuance thereof the company extended its 
street main pipes along the streets named in these ordinances, 
over a distance of 13,500 feet, — more than two and one-half 
miles, — and erected thereupon 103 street lamp-posts and lamps 
in addition, and lighted these in January and February, 1875, 
and ever since. The contract was to continue for the term 
of thirty years, from October 1, 1874. This suit was brought 
for the street light furnished in pursuance of the contract for 
the months of March, April, May, June, July and August, 
1877, amounting to $5,440.56. 

The declaration contains a special count upon the contract, 
and the common counts. The company recovered in the 
circuit court the contract price, — the sum sued for. On 
appeal to the Appellate Court for the Fourth District the 
judgment was affirmed, and the city appealed further to this 
court. 

The defence is placed solely upon the ground that the city 
had no power to make the contract. 

By its charter (vol. 1, p. 885, Private Laws 1869,) the city 
of East St. Louis is given power to contract and to be con- 



424 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Opinion of the Court. 

tracted with, to sue and be sued, etc. It is further provided 
therein, that the city council shall have power, by ordinance, 
to establish hospitals, etc.; to provide the city with water, 
etc.; to provide for lighting the streets of the city, and erect- 
ing lamp-posts; to provide for the erection of all needful 
buildings for the city, etc.; to establish a work house or 
houses of correction; to make, pass, publish, amend and 
repeal all ordinances, rules and sanitary regulations that may 
be necessary to carry into effect the powers vested by the 
charter in the city. 

The charter of this East St. Louis Gas Light and Coke 
Company is in evidence, found in vol. 1, pp. 584, 585, Pri- 
vate Laws 1865, creating it a body corporate, with power to 
contract and be contracted with, and giving it power and 
authority to manufacture and sell gas and coke, and to be 
used for the purpose of lighting the town of East St. Louis 
and the territory between its boundary and the Mississippi 
river, in St. Clair county, Illinois, or the streets, etc., therein. 

Section 4 is: "Said company shall have the exclusive 
privilege of supplying the said town of East St. Louis and 
said additional territory and the inhabitants thereof with gas, 
for the purpose of affording light, for thirty years, provided 
the rate of their charges for gas furnished shall not exceed 
the rate charged for gas by the Belleville Gas Light and 
Coke Company, and ten per cent in addition to said last 
rate." 

It will thus be seen that the city is given power to contract 
and be contracted with, and this must extend to the purposes 
of its incorporation. Among such purposes are the ones 
above enumerated — to establish hospitals, to provide the city 
Avith water, to provide for lighting the streets and erecting 
lamp-posts, to provide for the erection of needful buildings, 
to establish a work house or houses of correction. 

How are these various objects to be accomplished, except 
through the means of contract? The mere ordaining with 
respect to them will not secure them. When the city has 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 425 

Opinion of the Court. 

once determined upon the execution of any one of these pro- 
visions, then contract becomes necessary for carrying into 
effect the determination, as, for the purchase of ground, the 
erection of buildings, the obtaining of the supply of water or 
street light. 

After having acted under the power "to provide for light- 
ing the streets and erecting lamp-posts," by determining to 
light the streets with gas, and what streets shall be lighted, 
it is for the city to decide how it shall provide the material 
for lighting, — whether by the erection of its own gas works, 
etc., and the manufacture of its own gas, or contracting with 
others for its supply; but whichever the mode adopted, it is 
only through the means of contract that it can be carried out. 

But for the city's contracting with this company upon the 
subject, sufficient sanction is found in the charter of the com- 
pany, one of the very purposes of whose creation, as expressed 
in its charter, is to manufacture and sell gas for lighting the 
streets of the town of East St. Louis, and the company is 
given the exclusive privilege of supplying the town of East 
St. Louis with gas, for the purpose of affording light, for 
thirty years, the maximum charge therefor being fixed by 
the charter. Here is surely an expression of the design and 
purpose of the legislature that the town of East St. Louis 
might contract with this company for the supply of gas for 
lighting its streets. The town of East St. Louis is identical 
with the city of East St. Louis, it having been re-organized 
as a city in April, 1865, and re-chartered under its present 
charter of March 26, 1869. 

But the particular objection which is taken to this contract, 
as it has been made, is its term of duration, — for thirty years. 
In this respect it is insisted the contract is an abridgement 
of the legislative or governmental power of the city, in that 
it barters away the power of the legislative body of the city 
to legislate on the subject for thirty years. 

The doctrine, as declared in 1 Dillon on Mun. Corp. 
§ 61, is referred to, viz: "Powers are conferred upon muni- 



426 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Opinion of the Court. 

cipal corporations for public purposes, and as their legislative 
powers can not, as we have just seen, be delegated, so they 
can not be bargained or bartered away. Such corporations 
may make authorized contracts, but they have no power as a 
party to make contracts or pass by-laws which shall cede 
away, control or embarrass their legislative or governmental 
powers, or which shall disable them from performing their 
public duties." It is contended that under this doctrine the 
contract stands condemned, and is void. 

At first blush the contract may seem objectionable, as un- 
necessarily tying up the hands of the city council for such a 
length of time, though some excuse therefor may be found in 
the presumed difficulty of securing a contract for the con- 
struction of such expensive works as are here involved, 
without the assurance of patronage for some considerable 
length of time, and in the mention in the company's charter 
of thirty years as the time for the exclusive supply of the 
city with gas light. 

Whether this length of time of the running of the contract 
be a valid objection to it, we deem it unnecessary to deter- 
mine for the purpose of this suit, and would not be under- 
stood as expressing any opinion in that regard, for, admitting 
that the contract can not be upheld in this respect, it is an 
objection, we conceive, which applies only to the executory 
part of the contract, and has no application to the executed 
part of it. It does not appear in the case, nor is it claimed, 
that the city has exercised its power, by ordinance or other- 
wise, or manifested its wish, to provide differently, than as 
by the contract, for the lighting of its streets. So far as the 
contract has been executed, it has been as one for the fur- 
nishing of the light during the pleasure of the city. Had 
the contract been in that form, it would not have been ob- 
noxious to the objection made to it. Courts should not 
destroy the contracts made by parties further than some good 
reason requires. Such an objection as is made to this con- 
tract, that it interferes with the exercise of the legislative or 



1831.] E. St. Louis v. E. St. L. G. L. & C. Co. 427 

Opinion of the Court. 

governmental power of the city over the subject, does not 
require that the contract should be held void, but only void- 
able so far as it is executory. It is enough for the obviating 
of any such objection, that there be the right at any time to 
avoid the contract, so that there may be the freedom to exer- 
cise its governmental power in regard to the subject, when 
and as the city pleases. So far as the contract has been per- 
formed, by furnishing light to the city without its disaffirm- 
ance of the contract, it may be treated as if it had been a 
single contract for the furnishing of the light for the months 
in question alone, and one fully completed. The gas light 
having been furnished and enjoyed by the city without objec- 
tion, it should pay for it. There was no interference with 
the exercise of any legislative or governmental power upon 
the subject. As well after the erection of a hospital or work 
house, or other needful building, or gas works for itself, 
under a contract for such erection or construction, had one 
been made, might the city refuse to pay therefor, because the 
contract, during the time of its running, was an abridgement 
of the city's governmental power to provide otherwise in 
respect to the subject matter, as to refuse to make payment in 
the present case for the gas light which has been furnished. 
We do not see why there would not be as much force in the 
objection which is here made, in the one case as in the other. 

There can be no doubt that it was within the scope of the 
authority of the city to contract upon the subject. There is 
nothing of illegality in the contract, such as requires that it 
should be held void in the whole — the part performed as 
well as that not performed; and what the city has received 
and enjoyed the benefit of, under the contract, there is no 
principle of law which will justify it in its refusal to pay 
for. 

The general rule applying in such case is thus stated in 
2 Parsons on Contracts, 790: "A general rule has been 
asserted, which certainly rests upon reason and justice. It 
is, that where a party has accepted and made his own the 



428 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Opinion of the Court. 

benefit of a contract, he has estopped himself from denying 
in the courts the validity of the instrument by which those 
benefits came to him." 

In Field on Corporations, sec. 273, ^f 8, the following is 
deduced as the conclusion from an extended examination of 
the authorities upon this subject: " The better doctrine would 
seem to be, that where a contract ultra vires has been made 
by a corporation, and it has receiv.ed the full consideration, 
and appropriated the same so that it can not be restored and 
the other party placed in statu quo, and especially where no 
objection is interposed upon the part of those who might have 
made it, the corporation will generally be bound by the con- 
tract, the same as a natural person." 

In Hitchcock v. Galveston, 96 U. S. 341, the city council 
of Galveston had contracted with Hitchcock and others for 
the construction of certain sidewalks, to be paid for by the 
issue of city bonds. After the work was partly performed, 
the city council stopped the work and prevented its comple- 
tion. The action was for this breach of the contract. It 
was objected that by reason of the supposed want of power 
to issue the bonds, the entire contract was void, and no action 
could be maintained for the breach thereof. The Supreme 
Court of the United States held that the city was liable to 
the extent of the work actually performed under the con- 
tract, even though it had no lawful authority to issue the 
bonds, and in discussing the subject said: "It is enough for 
them (plaintiffs) that the city council have power to enter 
into a contract for the improvement of the sidewalks; that 
such a contract was made with them; that under it they have 
proceeded to furnish materials and do work, as well as to 
assume liabilities; that the city has received and now enjoys 
the benefit of what they have done and furnished; that for 
these things the city promised to pay; and that after having 
received the benefit of the contract the city has broken it. 
It matters not that the promise was to pay in a manner not 
authorized by law. If payments can not be made in bonds 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 429 

Opinion of the Court. 

because their issue is ultra vires, it would be sanctioning rank 
injustice to hold that payment need not be made at all. Such 
is not the law. The contract between the parties is in force, 
so far as it is lawful." Citing as in support of the decision 
the case of the State Board of Agriculture v. The Citizens' 
Street Railway Co. 47 Ind. 407, where it was held, that 
"although there may be a defect of power in a corporation to 
make a contract, yet if a contract made by it is not in viola- 
tion of its charter, or of any statute prohibiting it, and 
the corporation has by its promise induced a party relying 
on the promise and in execution of the contract to expend 
money and perform his part thereof, the corporation is liable 
on the contract." See Daniels v. Tearney, 102 U. S. Rep. 
415. 

This doctrine was, by this court, recognized and applied in 
its full extent in the case of Bradley v. Ballard, 55 111. 413, 
though, that being the case of a private corporation, it was 
there said there might be a difference with respect to munici- 
pal corporations, and that their debts illegally contracted by 
their officers would not be binding upon tax-payers. But 
the present is no such case of a debt illegally contracted, — 
there is, at most, but a defect of power to make a contract 
running for so long a time, and we consider, in the circum- 
stances of this case, that the doctrine above enunciated applies 
here with equal force as in any case of a private corpora- 
tion. 

It is insisted, further, that the city had no power to make 
the contract in question, because thereby an indebtedness was 
incurred in excess of the limitation fixed by section 12, art. 
9, of the constitution of this State. The provision in this 
respect is, that no municipal corporation "shall be allowed to 
become indebted in any manner or for any purpose, to an 
amount, including existing indebtedness, in the aggregate 
exceeding five per centum on the value of the taxable prop- 
erty therein, to be ascertained by the last assessment for State 
and county taxes previous to the incurring of such indebted- 



430 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Opinion of the Court. 

ness. Any * * municipal corporation incurring any 
indebtedness as aforesaid, shall, before or at the time of doing 
so, provide for the collection of a direct annual tax sufficient 
to pay the interest on such debt as it falls due, and also to 
pay and discharge the principal thereof within twenty years 
from the time of contracting the same." It appears that the 
previous indebtedness of the city existing at the time this 
contract was made, was $20,000 short of this constitutional 
limit. Two hundred lamps — the minimum number provided 
for by the contract — at $35.20 per lamp per year, would 
amount to $7040 in a year, and to an aggregate for thirty 
years of $211,200. 

Now, appellant's counsel contend that this aggregate sum 
of $211,200 should be considered as a present indebtedness, — 
as a debt incurred at the making of this contract on October 
3, 1880. 

We do not assent to the correctness of this view. 

The contract was for the furnishing of an article for 
nightly consumption by -the city during a period of thirty 
years, fixing the price at which the article should be fur- 
nished. There was no indebtedness in advance of anything 
being furnished, but indebtedness arose as gas should have 
been furnished along from rnght to night during the period 
of thirty years. The contract provides for the payment, 
monthly, at the end of each month, the amount that became 
due for the month then ended. When the company has fur- 
nished the gas for a certain month, then there is a liability — an 
indebtedness arises — and not before, as we conceive. Hence 
the amounts that might become due and payable under the 
contract in future years, did not constitute a debt against the 
city at the time of the entering into the contract, within the 
meaning of the constitution. 

Had the contract been performed in compliance with its 
terms, as it should and presumptively would have been, there 
would have arisen no indebtedness on the part of the city for 
more than one month's supply of gas. As already observed, 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 431 

Separate opinion by Dickey, Ch. J. 

this gas light was one of the ordinary current expenses of 
the city, it being furnished and consumed nightly, which 
would be and was presumably provided for and met by the 
annual appropriation and levy of taxes to pay the ordinary 
current expenses of the year, and from the city's other 
sources of revenue. We are clearly of opinion the contract 
does not fall within the constitutional inhibition. 

It appears that on February 1, 1877, the city was indebted 
$50,000 in excess of the constitutional limit. This might 
have been, and yet the city, in the subsequent months, at the 
times the gas sued for was furnished, may not have been in- 
debted beyond the constitutional limit; and this, without 
further noticing the point, we deem a sufficient answer to the 
objection made, that the city, at the times when the gas was 
furnished, was indebted beyond said limit. Such a defence 
in a case such as this, if it be one, must be strictly made out. 

The judgment of the Appellate Court will be affirmed. 

Judgment affirmed. 

Dickey, Ch. J.: Although the extracts from Parsons and 
from Field, contained in the opinion of the court delivered 
by Mr. Justice Sheldon in this case, relate solely to the 
law in respect to private corporations, and although it is 
expressly declared by this court in Bradley v. Ballard, that 
"what we have said applies only to private corporations 
organized for gain," and that "municipal corporations stand 
upon a different ground," still it is plain that the principle 
(stated in Parsons and in Field, and applied by this court to 
a private corporation in Bradley v. Ballard]) must logically 
be equally applicable to a municipal corporation in all cases 
where the act from which the estoppel arises, and also the act 
for a failure to perform which the action is brought, are both 
within the acknowledged powers of such municipal corpora- 
tion. In this case the estoppel arises from the act of the city 
in receiving the gas without objection, under the contract, in 
which the price pro tanto was specified. This act the city, 



432 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

under its charter, had full power to perform. The act which 
the city became bound by its conduct to perform, was to pay 
for the gas received at the price agreed upon, and it is for a 
failure to perform this act this action is brought. The city 
had full power, under its charter, to pay for the gas received, 
and also power to fix the price by contract. 

Separate opinion by Mr. Justice Walker: 

I concur in the decision announced in this case, and shall 
present some of the views which lead me to that conclusion. 

The long and well established doctrine of the law is, that 
all acts performed without authority are void. This applies 
as well to corporate bodies as to natural persons. The most 
simple and elementary rules hold that corporate bodies derive 
all of their powers from their creator, whether they be granted 
by the legislative, or (as in England) by the executive depart- 
ment of government. They are, by their charters, endowed 
with all of their franchises and faculties, and any attempt to 
exercise others is usurpation, that the law can never sanction. 
Natural persons are born with faculties, rights and powers, 
but corporate bodies possess none but such as are conferred 
by law, in express terms, or by clear and unmistakable impli- 
cation. These rules are so elementary that it is almost 
inexcusable to refer to them. 

If, then, this is true, how can it be said that a municipal 
or private corporation can enter into a valid contract which 
is prohibited by law, or one that is not in conformity with 
the requirements of the law, or where no authority is pos- 
sessed to so contract? It would seem to be so clear that such 
a contract would be entirely void, as to require no discussion 
to establish its truth. It must follow, that if a contract by a 
corporate body is void for the want of power to make it, such 
a body is equally powerless to ratify it, or to perform acts 
that would estop it from asserting its invalidity. There 
must be the same quantum of power to ratify a void as is 
required to enter into a binding contract. The stream can 






1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 433 

Separate opinion by Walker, J. 

never rise higher than its source, and a contract void for 
want of power can not be ratified or the body estopped, where 
the power is only the same and no greater than when it was 
first executed. This would seem to be axiomatic; but I am 
fully aware that some courts of respectability have announced 
an opposite rule, and some text writers have followed such 
decisions. But I can never indorse the doctrine, and dissent 
to it in its entire length and breadth. 

Who ever heard of its being claimed that, under the opera- 
tion of the common law, a contract of a married woman, or a 
person non compos mentis, could be ratified, or they could be 
estopped, during the continuance of the disability? So of 
the contract of a minor, which may be only voidable. I 
presume it was never urged that such a contract could be 
rendered valid by a further contract, or the infant be estopped 
by his acts before arriving at his majority. And this is so 
because of the want of power to bind himself at the time of 
making the contract, and therefore a subsequent agreement, 
or the performance of acts, that otherwise Avould operate as 
an estoppel, can not produce such results. And the same 
must be true, to its full extent, of corporate bodies acting 
without power. No well founded reason or distinction cau 
be taken. A rule that a party under disability, entering into 
a contract, may, during such disability, ratify it, or may so 
act as to become estopped, is not sanctioned by any rule, and 
is opposed to every well founded legal principle; nor can 
any rule or principle be found that can sanction it as an 
exception. 

But if such an exception could be maintained against pri- 
vate corporations, what possible reason can be assigned for 
applying it to public corporations? They are dissimilar in 
the purposes of their creation and in the powers with which 
they are endowed. The one class is created for business 
purposes, and the other as aids to the government in con- 
ducting public affairs. The one is endowed with a portion 
of the powers of natural persons, and the other with a portion 
28—98 III. 



434 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

of governmental functions. In this consists a broad differ- 
ence between the two. If deemed necessary to make the 
exception against private corporations to enforce void con- 
tracts made in the course of their business, it does not, by 
any means, follow that the same exception should be applied 
against public corporate bodies. To sanction such an excep- 
tion is to abolish all distinction between rightful exercise of 
power and action without power by such bodies, and if car- 
ried to its logical conclusion must destroy legislative power 
to limit and restrict these bodies by their charters. It would 
be to enable persons to procure a charter with specific fran- 
chises and powers, and to exercise all other unenumerated 
franchises and corporate powers. Whilst it is desirable that 
contracts entered into by such bodies shall be protected and 
enforced, it is not desirable that all or any of the well defined 
principles of the law should be overturned to accomplish the 
purpose. 

It may be that the General Assembly has authority to em- 
power a corporation to ratify a contract made by it with- 
out power, or to declare that certain acts performed by it 
shall operate as an estoppel to assert the want of power; but 
no proposition can be plainer than that the courts have no 
such power, and to exercise it is to infringe upon the powers 
and functions of the legislative department of government. 
If maintained, it will operate as judicial enactments that find 
no sanction in the fundamental law conferring judicial power. 
The functions of the different departments must be kept dis- 
tinctly separate and well defined, to avoid confusion, and to 
carry out the purposes of the founders of our system of gov- 
ernment. 

I, however, do not understand the main opinion to sanction 
or indorse this doctrine, but it refers to cases and text books 
that do assert it, and I feel constrained to avoid even the 
semblance of its indorsement, as I regard the question of 
more than ordinary importance. The past generation has 
been prolific in creating these artificial bodies, and their 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 435 

Separate opinion by Walker, J. 

number and extent are vast, and thus this question assumes 
importance. 

The courts have ever held that private or business corpo- 
rations are artificial persons, endowed with rights that are 
entitled to the same protection as those of natural persons; 
and if natural persons, under disabilities, can not bind or 
estop themselves, it may be asked why corporate bodies under 
like disabilities should not receive like protection? This is 
not a question of policy, but of right. But if it were, it is 
not for the courts, but the legislature, to inaugurate the policy. 
As has been seen, a contract entered into in violation of law, 
or where there is no legal power, is void, and incapable of 
ratification, or becoming binding bf estoppel, until power to 
ratify or become estopped shall be conferred by the legisla- 
ture. But when the body has power to contract, but in doing 
so exceeds its power, either as to the matter, amount or time, 
the corporation may ratify or execute the contract to the 
extent of the lawful power, but may, if it choose, at any 
time refuse to go on in the fulfillment of the agreement, and 
terminate its existence. The corporation can not repudiate 
the portion which has been performed. The executed portion 
within the power must bind the parties; but not so if an 
unauthorized portion has not been executed, — such portion 
may be repudiated at pleasure. 

In this case the city was authorized, by its charter, to erect 
lamp-posts and to light the streets, but the manner in which 
it should be done was not specified. This, then, left it option- 
ary with the city to provide the means and manufacture its 
own gas, or to purchase it by contract, reasonable in terms 
and time for its performance. I apprehend it will not be 
questioned that the city might, under this grant of power, 
have contracted for gas for a month or a year. It is only 
denied that the city has power to contract for long periods 
of time, and that a period of thirty years is beyond the limits 
of its power. Although the contract extends through a 
period of thirty years, it provides for payment for all gas 



436 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

furnished, each month, at its termination. The city having 
the power to contract by the month, it was fully within the 
power of the city to ratify the contract for each month the 
gas was supplied, and receiving and using it, as the city did, 
was a ratification for the time it was supplied. If the con- 
tract was void because it exceeded the period for which the 
city could contract, to have avoided liability for the future it 
should have repudiated the agreement, given notice of the 
fact, and refused to receive any more. This it did not do, 
and hence it must be held liable for all that has been 
received. 

Inasmuch as counsel on both sides have presented and 
argued, as the important and controlling question of this 
case, the validity of the contract between the 'city and the 
gas company, I shall give some of my views on that ques- 
tion. 

I regard it as necessary, in discussing so important a 
question, to refer to a few plain and generally admitted 
fundamental principles of our system of government. All 
political power rests in the people, nor can they alienate 
it. But in forming our constitutions of government, they 
delegated, but did not grant, governmental powers to the three 
departments: the legislative to one, the executive to another, 
and the judicial to a third. 

The power thus delegated was a trust, and not a title. 
Such powers are- incapable of being exercised rightfully for 
any other than the purposes for which they were delegated. 
And this power is entrusted with the understanding that it 
may be withdrawn, in whole or in part, at the will of the 
people, by amending the organic law. 

In organizing our system, neither the Federal nor State 
government is invested with plenary and complete sov- 
ereignty, but it is divided between them, and to each is 
confided such portion only as was deemed necessary to 
attain the best government possible. The departments and 
functionaries of each must find authority, in their several 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 437 

Separate opinion by Walker, J. 

constitutions, to warrant their governmental acts. The 
theory is, that the Federal government possesses and exercises 
enumerated powers, expressly delegated. Its organic law 
specifies what acts its departments may perform. The objects 
of legislation by congress are enumerated, and it must look 
to that instrument for its power to pass laws; nor can it 
transcend the expressed limit, unless the power exercised be 
necessary to carry into effect an express grant of power. On 
the other hand, when the legislature of a State is invested with 
legislative power, it is plenary, unless prohibited by the 
State or Federal constitution, or the power has been dele- 
gated to congress. Hence, an act of congress to be valid 
must be authorized by the Federal constitution. But when 
an act of a State legislature is challenged as unconstitutional, 
the question is, whether it is prohibited by constitutional 
limitation. All legislative power is within the domain of a 
State legislature unless limited, but none is within that of 
congress unless it is conferred in terms or by clear and neces- 
sary implication. In this there is abroad distinction between 
the legislative powers of the two governments, and it grows 
out of the fact that before the adoption of the Federal con- 
stitution the States were endowed with all legislative power, 
but a portion of that power, and only a portion, was taken 
from the States and conferred on the Federal legislature. 

The other departments of the two governments must look 
to the organic law for power to perform their functions, 
and they are largely dependent on the legislative depart- 
ment for enactments, to enable them to perform their func- 
tions. But each is separate, distinct and independent in its 
action. No officer of the general government, or its depart- 
ments, can perform functions or exercise the powers belong- 
ing to a State government, nor can departments or officers 
of a State government exercise powers or perform duties 
which belong to the Federal government. The sources of 
their powers are different, the purposes of their organiza- 
tion are different, and the ends to be accomplished are 



438 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

different. One set are the instrumentalities of one, and the 
other of another government. The officers of each may 
perform similar but not the same duties. They may exercise 
like but not the same powers. Each acts to carry out the 
powers of its government, but can not act for the other. 
So long, therefore, as the instrumentalities of each confine 
themselves strictly to the exercise of their own powers, with- 
out encroaching on the rights of the other, harmony between 
the two is absolutely certain. But the tendency of all 
human action, whether in the aggregate or by the individual, 
is for the stronger to dominate the weaker, and this is as true 
when applied to official or governmental as to individual 
action, and it remains for the future to determine whether 
our system of government shall form an exception to the 
past history of the world. If encroachments shall come, 
and be successfully maintained, whether by the States or 
the Federal government, it must prove disastrous to the 
government. Nor can any one safely predict from which 
direction it is liable to come, or whether for a time in one 
direction, and then react in the other, with redoubled energy. 
Our only safety is for each to scrupulously abstain from the 
exercise of all power which belongs to the other, and thus 
avoid all occasion for contention and strife. 

It then follows, that the Federal Supreme Court has the 
power, and it is its duty, to give construction to the Federal 
constitution and laws, and it is the duty of the State court 
of last resort to give construction to the State constitution 
and laws ; and when each has given such construction, it is 
authoritative and binding on all other tribunals. This is so 
of necessity, because each is acting under and performing 
duties for its own government. No organization deserves 
the name of a government which is powerless to enact, inter- 
pret and enforce its own laws. Nor can a government long 
maintain its authority which is compelled to submit to the 
construction of its constitution and laws by the tribunals of 
another government, and especially so when that other 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 439 

Separate opinion by Walker, J. 

tribunal is under no special obligation for its support, not 
even the sanction of an oath, and can be restrained only by 
its uncontrolled will. Surely such was not the intention of 
the framers of our constitutions of government. Such action 
might be adapted to provinces, but never can be to govern- 
ments. 

The constitution may, I think, be searched in vain for the 
semblance of power in the Supreme Court of the United 
States to review and annul a decision of a court of last 
resort of a State, giving construction to the State constitution 
or a statute of a State not in conflict with any provision of 
the Federal constitution. The power has no existence in 
either the enumerated or unenumerated powers, and hence 
the congress of the United States has no authority, if it 
would, to confer such power. It, on the contrary, has, by the 
act of 1789, declared that the laws of the State shall be the 
rule of decision by the Federal courts, when they are appli- 
cable, except when the constitution, treaties, or statutes of 
congress otherwise require or provide. 

Then what are the laws of a State? Manifestly its consti- 
tution, statutes and the rules applied in the administration of 
justice, as construed and applied by the court of last resort 
in the State. When so construed and applied they are the 
laws by which all persons in the State are governed, and to 
which they are compelled to yield obedience, and which the 
functionaries of the State are bound to enforce. When the 
State court has decided a contract is repugnant to the State 
constitution, or that it violates a statute of the State, or fails 
to conform to its requirements, the Federal court, as has been 
seen, has no power or jurisdiction to review the decision and 
declare the contract is not repugnant to the State constitution 
or law, or to declare it valid and enforce its performance. If 
such is its power, then the State courts must take the con- 
struction of their constitutions and laws as given by the 
Federal court. This they are not required to do, and failing 
:o do so, there must be two rules of decision in the same 



440 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

jurisdiction : one for residents and the other for non-resi- 
dents of the State. If such shall be the action of the two 
tribunals, then a non-resident may enter into a contract for- 
bidden by law or not in conformity to law, and sue in the 
Federal courts and enforce the contract, as the Federal courts, 
as I have already said, owe no special duty to the State con- 
stitution and laws. It was the manifest design of the framers 
of the constitution that a citizen of one State suing in 
another should have the same and no other measure of 
justice than is meted to the citizens of the State in which 
he sues. Any other rule would be subversive of equal 
justice. 

There would seem not to be the slightest pretence that the 
obligation clause of the constitution confers the power on the 
Federal Supreme Court to review and revise the decisions of 
the State court. Then what are the rightful powers and 
jurisdiction of the two courts? Obviously it devolves on 
the State court to determine whether the contract contravenes 
the constitution or laws of the State, and if it so holds, 
then the contract is void, and if void it has not, nor can it 
have, any obligation to be impaired. If it is held there is a 
valid contract, then the judicial powers of the Federal gov- 
ernment may be invoked to protect it against any law which 
attempts to impair its obligation. The State courts, beyond 
all dispute, had this power before the adoption of the Federal 
constitution, and no one, so far as I have been able to find, 
has ever suggested by what constitutional provision the juris- 
diction has been lost. It has been assumed, and where will 
this assumption end? Who can answer? Not the present 
incumbents of that tribunal, as they have no power to 
bind those who may succeed them. To preserve harmony 
there must be a boundary between the jurisdiction of the two 
tribunals, and where more reasonably than that here indi- 
cated ? 

There is another plain, fundamental principle, that would 
seem to be axiomatic, which is, that departments or officers 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 441 

Separate opinion by Walker, J. 

have no power to alienate the powers of government to per- 
sons or corporations. And it is equally true that neither can, 
by a contract in any form, bind the government not to exer- 
cise any of its powers, nor to sell the privilege to persons or 
corporations to exercise governmental powers, nor to bind 
the government to release them from the observance of the 
general laws, police regulations or the penal code. All such 
sales, agreements and exemptions are utterly void. Such 
grants and agreements are contrary to the principles of all 
government, from the mildest to the most despotic. It is 
subversive of government. A stronger may wrest such 
powers from a weaker government, but the power can not be 
sold. The instrumentalities of government have no title to 
such power, and hence can not sell or dispose of it. Would 
it not be regarded as monstrous, if the chief executive or the 
judge of a court were to contract, with or without a consid- 
eration, with an individual or a corporate body, not to exe- 
cute the laws, or not to perform the duties of their offices? 
Where does the legislature acquire the power to make such 
contracts or to sell the powers of government? To what 
constitutional provision or principle can it be referred? 

If the mere trustees of the power may sell one portion of 
the essential powers of government, they may alienate all of 
them. This proposition would seem to be self evident. If 
the General Assembly may constitutionally bind itself not to 
exercise one of the governmental powers, it may by contract 
abdicate the exercise of all of its functions. If it may sell 
or barter away its own powers, it may the powers of the 
executive and judicial departments. 

All writers on government agree, that the taxing power is 
one of the highest and most essential attributes of sovereignty, 
because only by its exercise can the government exist. It 
affords the aliment that preserves the life of the government. 
Without revenue the government must end. Suppose the Gen- 
eral Assembly were to propose by enactment that all persons 
who should, by a specified day, pay a particular sum into the 



442 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

State treasury, they and their heirs, and the property of each, 
should be forever exempt from taxation or any contribution 
to the support of government, could any one be found who 
would contend that it would be within the scope of legislative 
.power? And yet, if the legislature may exempt an individual 
for life, or a corporate body forever, why may it not exempt 
all persons from the same burthens? In the very nature of 
government itself it can not be justly done, and there is an 
absolute want of power to perpetrate such wrong on the com- 
munity. If so unreasonable and so unjust a doctrine must 
obtain, the time must come when there will be a large and 
privileged class wielding the capital of the country, who, 
whilst receiving protection to themselves and property, will, 
by contract, be entirely exempt from all of its burthens. 
They will purchase exemption by paying a trifling considera- 
tion, or persuading the legislature that some trifling service 
is a consideration that is an equivalent for the exemption. 

It will no doubt be said that I am anticipating evils that 
can never occur. Let it once be understood that such exemp- 
tions will be sustained, and efforts will be made, combina- 
tions formed, and every appliance used to procure them, that 
must prove potent for evil. 

These, and similar exemptions equally pernicious, are mul- 
tiplying with great rapidity, and no one can calculate the 
extent it will reach within the next century, which is 
but a span in the life of a nation. We have no 
power, and if we had it would be unjust to those who 
come after us, to entail on them such consequences. Such 
a doctrine tends to the subversion of the principles of 
our government, — to the obliteration of some of its most 
essential doctrines, and if maintained, must be attended with 
incalculable evil. Yet the Federal Supreme Court has held, 
in numerous cases, that it is competent for the General Assem- 
bly to contract with a corporation never to tax its property, 
and not only so, but has overruled a decision of a State court 
holding that the exemption was repugnant to the State con- 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 443 

Separate opinion by Walker, J. 

stitution, — and in doing so resort was had to highly refined 
distinctions in the meaning of words. The court surely did 
not contemplate the consequences of such a precedent. 
Whether so or not, I dissent toto ccelo to the doctrine. 

I maintain the broad doctrine, that, independent of all 
constitutional restrictions, the General Assembly has no 
power to irrevocably bind itself or its successors not to exer- 
cise the power or perform the duty of levying and collecting 
taxes on all property. That can be done only by constitu- 
tional requirement. All such exemptions, even tempora- 
rily, are unjust, and when permanent and without limit as to 
the amount, and perpetual in its continuance, must prove op- 
pressive to the balance of the community. Is it possible that 
the General Assembly may put up such exemptions on the 
auction block, and knock them down to the highest bidder, 
or may, on a pretended or fictitious consideration, bind 
themselves and succeeding legislatures never to resume the 
.power to impose just taxes on the property of the individual 
or corporate body? I am not aware that such exemptions 
have been made in favor of individuals, but to corporations 
only; but by every rule of constitutional law, individuals are 
entitled to the same privileges as corporate bodies. 

These are questions that are not, I think, settled, nor will 
they ever be until the grounds on which Dartmouth College 
v.Woodward, 4 Wheat. 518, and cases based upon it, shall be 
reviewed, and the doctrine settled on true principles. Those 
decisions are not sound, and if the republic lasts, the time 
will come when correct principles must and will govern. 
With our rapidly increasing population, commerce and wealth, 
the rapid increase of corporate bodies with such exemptions, 
the hasty and inconsiderate legislation that makes such grants 
will produce evils, and impair the powers of government so 
that it must prove disastrous, and will demonstrate the un- 
soundness of those decisions, so as to compel a reconsideration 
of the grounds upon which they are based. Overpowering 
necessity will compel it, or the State governments will be 



444 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

shorn of all power to afford just protection to the people. 
It is a monstrous heresy to hold that a legislature may create 
a body, and by contract place it beyond all control. The 
Federal court has not so held, but if its decisions are carried 
to their logical and consistent results, it must and will come 
to that. Consistency must carry the doctrine to that point, 
and all for the reason that the court is following a precedent, 
and extending and applying principles that are wholly 
unsound. 

Can it be possible that in framing the obligation clause of 
the constitution, power was conferred upon State legislatures 
to make merchandise, and put up at auction and knock down 
under the legislative auctioneer's hammer the essential and 
sovereign power of the government? Were the framers of 
that clause aware of the fact that they were providing the 
means of subverting, not only the principles of our government, 
but also its form and power? Did they intend to grant the 
power, or is it possible to believe they imagined, that they were 
inventing an unheard of means by which a State could commit 
suicide and terminate its existence? Did they suppose that they 
were enabling a corrupt or weak legislative body, swayed by 
passion, prejudice or cupidity, to irrevocably bind the govern- 
ment never to exercise the taxing or law-making power on 
individuals or corporate bodies, however powerful or useful? 

From time immemorial the power has been exercised of 
temporarily conferring some of the powers of government to 
municipal bodies; but the power to modify, amend or repeal 
the charters of such bodies has existed and been recognized 
since they were first established. This is so because they are 
created as aids to government, — mere instruments of the State 
for public convenience and utility. And in Dartmouth Col- 
lege v. Woodward, supra, these charters were held not to be 
a contract, within the meaning of the obligation clause of the 
constitution, and were conceded to be under legislative con- 
trol, nor has the Federal Supreme Court yet held, in terms, 
that they are not; but if that tribunal shall adhere to the 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 445 

Separate opinion by Walker, J. 

doctrines of more modern decisions, it will be- inevitably 
compelled to so hold, where the General Assembly shall 
attempt to grant power to make a contract between a muni- 
cipality and a private corporation, requiring a long period 
of time for its performance, and the grant of such power is 
held constitutional by the State court. That court, to be 
consistent, must hold that such a grant, sanctioned by such 
judicial determination, must deprive the legislature of all 
power to repeal the charter of the municipality, however ur- 
gently demanded by public necessity, but are bound to keep 
it in existence, that there may be a contracting party for the 
benefit of a private corporation, even to the injury of the 
public. The wisest and most far-seeing, to their great aston- 
ishment, will then find that human foresight and sagacity 
were not capable of seeing or preventing having fastened 
upon the people local government, beyond the control of the 
power of the State. This, manifestly, was never intended by 
those who made the constitution, or the decision in Dartmouth 
College v. Woodward, supra. 

In the power of legislative control of municipalities, there 
is a broad distinction from private corporate bodies. The 
latter are protected from legislative control in all of their 
franchises, in the same manner and under the same legal 
principles that individuals are protected in their property, 
and this, too, without any reference to the obligation clause, 
but for the same reason that persons are protected in their 
rights of property, — on the same principle that all are secured 
against invasion of their rights of persons and property. 

But the principles of Dartmouth College v. Woodward, supra, 
I have ever regarded as unsound, and must, in the end, yield 
to correct principles. It will, no doubt, be said that nearly 
two-thirds of a century should settle the doctrine, and it 
should not be disturbed. Where a decision is inherently 
wrong, and is adhered to, and its principles extended and 
applied to other cases falling within its doctrines,' it must 
produce evils that must constantly call for a review and modi- 



446 E. St. Louis v. E. St. L. G. L. & C. Co. [May 



Separate opinion by Walker, J. 



fication of such a decision. When inherently wrong, time 
itself can never sanctify its doctrines. 

The increased energy and quickened impetus that modern 
civilization has imparted to commerce, trade, manufactures 
and other pursuits, has vastly increased all of their appliances, 
and chartered incorporations have been seized upon as one 
of the most potent means of giving acceleration to the move- 
ment. From this cause there has been a vast multiplication 
of charters, for almost every conceivable object. Those who 
granted them, looking alone to this advance, did not consider 
collateral or ultimate results, but simply the means best cal- 
culated to sustain the wonderful progress that surrounded 
them and carried them with it. Hence charters were loosely 
drawn, illy considered, and hastily and improvidently adopted. 
By that means grants and exemptions were conceded, fre- 
quently couched in obscure language, and not properly 
limited. It, therefore, follows, that the salutary rule of con- 
struction should be applied, that all grants by the govern- 
ment should be construed liberally in its favor, and strictly 
against the grantee. A strained construction against the 
government can not be sanctioned without cutting loose from 
long and uniformly established doctrines of the law; and 
most certainly so when the departure forever deprives the 
government of its essential powers. 

But if the charter of a private corporation must be held a 
contract, then there should be a distinction made that none 
can be protected but such as aid the government in carrying 
out its public policy. All should be considered nudum 
pactum but such as are of a quasi public character. Such 
are railroads that transport persons and commodities from 
one point to another, at cheap rates; banks that furnish cur- 
rency, and facilitate commerce and trade; and a class of 
colleges and universities that advance knowledge, increase 
intelligence, and all of the attendant benefits; — and some 
others might be enumerated. But even in their protection it 



1881.] E. St. Louis a E. St. L. G. L. & C. Co. 447 

Separate opinion by Walker, J. 

should not be extended to grants of governmental powers, or 
an abdication of their exercise. 

What reason can be assigned for protecting petty corpo- 
rations under the obligation clause of the constitution, where 
they render no service to the State, promote no public interest, 
but simply do a business, which, had they not obtained 
charters, would have been accomplished as well by individual 
or partnership enterprise? Such petty bodies usually procure 
charters simply to escape individual liability for debts 
incurred in carrying on the business, after, in many instances, 
making dividends from the capital equal to the money paid 

in bv the stockholders. Are these such bodies as should 

j 

excite the solicitude of courts to strain construction to bring 
them under the broad and ever-extending shield of the 
obligation clause of the constitution? They are of no public 
utility, and are usually pernicious to public asAvell as private 
interests. 

But, it may be said the legislature should exercise more 
wisdom in granting privileges and exemptions, or the people 
should be more prudent in electing their representatives, and 
they must be held to the results of their imprudence. It may 
be that more discretion should be used, but if so, why visit 
punishment on those who shall come after them, as all ces- 
sions of political or governmental power are given forever, — 
beyond recall even by constitutional amendment, — if the 
doctrine of the Federal Supreme Court shall obtain? But 
aside from this, all who are familiar with the history of the 
past, know that there are periods in the history of people 
and governments, when, through general and intense excite- 
ment, all, even the most intelligent, lose their equipoise, and 
blind passion rules the hour, and all rush to financial ruin. 
In illustration of this fact it is only necessary to refer to 
the " Mississippi Bubble," and "John Law's financial 
scheme." The same spirit has dictated the prodigal and 
pernicious grants to corporate bodies, which seem likely to 
entail vast and unending evils. 



448 E. St. Louis i\ E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

Iii view of these facts, why extend the principles of Dart- 
mouth College v. Woodward, supra, to embrace cases that are 
excluded in terms or by the reasoning, — cases which those 
who decided the case did not intend to embrace, and no 
doubt supposed never would be held to be embraced in the 
decision or the reasoning? In view of the importance of the 
question I am discussing, I shall examine the rule of con- 
struction adopted in Dartmouth College v. Woodward, supra. 
It is the first case where the obligation clause was construed, 
and is the supposed basis of subsequent decisions. Few 
cases in this country ever excited more division and bitter 
contest. It was not at the time, and never has been, satis- 
factory to a large portion of the bar, eminent for their ability, 
and it is believed to be less so since it has been extended in 
its application to cases that were supposed to be beyond its 
reach. Nothing short of the luster of the name of Chief 
Justice Marshall, which has caused unquestioning assent to 
all of his utterances, could have given that case the force of 
a precedent that has not before this been overruled or essen- 
tially modified, and limited in its application to subsequent 
cases. And whilst his great fame was justly earned and 
properly bestowed, and whilst he was always great, it would 
not be true to say he was always accurate. And I must 
presume to say, that I think his construction of the obliga- 
tion clause in that case is unsound. 

He, after quoting the clause of the constitution that no 
State shall pass any law impairing the obligation of con- 
tracts, and the further clause which confers jurisdiction on 
the Federal courts, assumes the vital, and in fact the con- 
trolling, question in the case. He says: "It can require no 
argument to prove that the circumstances of this case con- 
stitute a contract." This was the question upon which the 
decision was made to turn, and which was in dispute. It is 
apparent that whilst the application to the government for 
the charter was pending, there was no element of a contract. 
When the charter was conceded and accepted, it undeniably 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 449 

Separate opinion by Walker, J. 

constituted a complete and executed grant. But, according 
to all received definitions of the term "contract," whether 
of that or the present day, it was not a contract. It, how- 
ever, was a grant, with its powers and its limitations fully 
executed and performed by the government, — as completely 
so as had the government granted, issued and delivered a 
patent for a tract of land. It would have been as accurate 
to call the patent a contract as the charter. When the 
cession or grant was made, the government, by or in the 
charter, proposed or agreed to do nothing further, nor did 
the corporation agree to do any act for the government, the 
public, or any individual. There was the implied duty on 
the part of the government to protect the body in its rights 
and franchises, to the extent, and to no greater extent, than 
would have been the implied duty to protect an individual in 
the use and enjoyment of land sold or granted to him, and 
for which a patent had been issued, and the duty to neither 
would have been higher than to afford protection to any 
other individual in any and all of his legal rights. 

On the other hand, it is held that there is an implied duty 
on the part of the corporation to carry out the purposes for 
which it was organized. But the duty arises by implication 
of law, and not by contract. But the duty to carry out the 
objects of its organization is no more a contract than are 
duties imposed on a natural person. Hence the grant and 
acceptance of such a charter can only accurately be said to 
be a grant, the duties being imposed by law, not by con- 
tract. 

The generally accepted and technical meaning of the word 
"contract," is given by Blackstone, vol. 2, p. 442. He thus 
defines the term: "An agreement, upon sufficient consider- 
ation, to do or not to do a particular thing." This was 
then, as now, its legal meaning. If this be true, and its 
correctness will not be questioned, where are the elements, 
or a single element, of a contract, in the grant of a charter to 

a corporation ? I fail to perceive any. I have said the 
29—98 III. 



450 E. St. Louis v. E. St. L. G. L. & C. Co. [May 



Separate opinion by Walker, J. 



government does not agree, promise or covenant to perform 
a single act when a corporate body receives its charter, and it 
agrees to perform no act or duty. Then how can this char- 
ter, or any other, in any just sense, be said to be a contract? 
Not by any rule or definition of which I am aware. If, how- 
ever, it be said that in construing the constitution mere tech- 
nical rules or precise and accurate definitions should not 
control, but the whole instrument and all of its provisions 
should be considered for the purpose of learning the mean- 
ing of the framers of the instrument, it may be conceded. 
And yet there is another rule which requires that the words 
must be interpreted in their ordinarily accepted sense, as 
that instrument was written to be read and understood by the 
people. 

Tested by this rule, I apprehend few, if any, persons would 
ever call a charter for a corporation a contract, or would 
ever suppose it was, unless informed that it had been so held 
by the courts. Such is not the usually accepted meaning of 
the word. But be this as it may, I shall proceed to 
ascertain whether under any rule the court gave to that 
clause a proper construction. 

Notwithstanding Chief Justice Marshall says that it re- 
quires no argument, he does proceed to argue for the construc- 
tion adopted. In speaking for the court, he limits and guards 
the application of the rule even far beyond its exception of 
municipal bodies. He says, it was " urged that the word ' con- 
tract/ in its broadest sense, would comprehend the political 
relation between the government and its citizens; would extend 
to offices held under State authority and for State purposes, 
and to many of those laws relating to civil institutions which 
must and would be controlled by circumstances, and be modi- 
fied by legislation to preserve good government, and in which 
the public judgment must control; that even marriage is a 
contract, and its obligation is affected by the laws respecting 
divorces; that the clause in the constitution, if construed in 
its greatest latitude, would prohibit these laws. Taken in its 






1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 451 

Separate opinion by Walker, J. 

broadest and unlimited sense, the clause would be an unprofit- 
able and vexatious interference with the internal concerns of 
a State, would unnecessarily and unwisely embarrass its legis- 
lation, and render immutable those civil institutions which 
are established for purposes of internal government, and 
which, to subserve those purposes, ought to vary with the 
varying circumstances ; that as the framers of the constitu- 
tion could never have intended to insert in that instrument a 
provision so unnecessary, so mischievous, and so repugnant 
to its general spirit, the term ( contract' must be understood 
in a more limited sense; that it must be understood as intended 
to guard against a power of at least doubtful utility, the abuse 
of which has been extensively felt, and to restrain the legis- 
latures, in future, from violating the right of property; that 
anterior to the formation of the constitution, a course of legis- 
lation had prevailed in many, if not all, of the States, which 
weakened the confidence of man in man, and embarrassed all 
transactions between individuals, by dispensing with a faith- 
ful performance of engagements. To correct this mischief, 
by restraining the power which produced it, the State legis- 
latures were forbidden to pass any law impairing the obliga- 
tion of contracts, — that is, of contracts respecting property 
under which some individual could claim a right to some- 
thing beneficial to himself, — and in that sense the clause in 
the constitution must, in construction, receive some limita- 
tion. It may be confined, and ought to be confined, to cases 
of this description — to cases within the mischief it was in- 
tended to remedy. 

u The general correctness of these observations can not be 
controverted. That the framers of the constitution did not 
intend to restrain the States in the regulation of their civil 
institutions, adopted for internal government, and that the 
instrument they have given us is not to be so construed, may 
be admitted. The provision of the constitution never has 
been understood to embrace other contracts than those which 
respect property or some object of value, and confers rights 



452 E. St. Louis v. E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

which maybe asserted in a court of justice. It has never 
been understood to restrict the general right of the legisla- 
ture to legislate on the subject of divorces. These acts 
enable some tribunals, not to impair a marriage contract, but 
to liberate one of the parties because it has been broken by 
the other." 

I have quoted thus liberally from this opinion because 
these paragraphs embody the rule, with its limitations, and 
the reasons for the construction given to the obligation clause, 
on which the decision of that case depended. But it seems 
to me that it is utterly impossible, by any ingenuity, to 
torture anything there said into a precedent that can sanction 
the authority of a legislature to barter away any of the essen- 
tial attributes of government, and that such a grant is held 
to form a valid contract, and is protected by the obligation 
clause of the constitution. On the contrary, it is manifest 
that such power and protection are as clearly excluded as 
though the opinion had been written in a case presenting that 
very question. There is nothing in the opinion that can, in 
the slightest degree, sanction such a doctrine. But the case 
denies it, in principle. 

I am unable to see that the reasons assigned for the con- 
struction adopted sustain the interpretation announced, even 
with its limitations. It is not said, nor does the history of 
those times inform us, that the legislature of any State had 
seized the franchises, property or government of any civil 
corporation, or the property of individuals, before the Fed- 
eral constitution was adopted, but they had passed unfriendly 
enactments to prevent the enforcement of contracts for the 
payment of money, and the performance of other obligations 
between man and man, and it is perfectly obvious, to my 
mind, that such were the contracts intended to be embraced 
in the obligation clause of the constitution, and they are such 
as are referred to by the court. The facts to which the court 
refers do not warrant the inference that the framers of that 
clause had such a corporate body, or its grants of privileges 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 453 

Separate opinion by Walker, J. 

and powers, in their minds, but did have, and only had, un- 
performed contracts and agreements in view. Property 
rights, including franchises, were, no doubt, intended to 
be and were protected by the clause which prevents private 
property from being taken for public use without just com- 
pensation. 

By what rule of construction can it be said that the 
language of that clause embraces one contract and excludes 
another? The clear and manifest import of the language 
includes all contracts. It provides for and makes no excep- 
tion to any species of contracts. It says contracts, and 
means all contracts, and a court has no power to exclude any- 
thing embraced in the terms of a constitutional provision or 
a law. The canons of construction forbid it. And where a 
court excludes things embraced in either, because the court 
would not have included them, that is not construction, but 
is repealing or amending the provision, — is exercising legis- 
lative and not judicial functions, and no one will claim such 
power for a court. 

The unsoundness of the decision consists in calling things 
contracts which are not contracts. According to no accurate 
definition can marriage be called a contract. It is a relation 
existing between the parties. That relation doubtless results 
from a previous contract, and so of the ownership of all prop- 
erty or rights enjoyed by all persons. The relation of hus- 
band and wife has no more of the elements of a contract than 
that of parent and child. It is a mere relation, and that 
relation, under the law, imposes duties, and a violation of 
some of those duties authorizes the termination of the rela- 
tion by a sentence of a court of competent jurisdiction. If it 
was a contract, then to dissolve the relation under and in 
accordance with a statute passed authorizing its dissolution, 
would be to impair the obligation or binding force of the 
contract. Nor is it accurate to say that when the divorce is 
granted, if it is a contract, it does not impair the obligation 
of that contract, but -simply releases one of the parties from 



454 E. St. Louis v. E. St. L. G. L. & C. Co. [May 



Separate opinion by Walker, J. 



its performance. Would not all persons say, that were a law 
passed that provided that all payees of notes, on failing to 
perform certain things not required by the notes, should 
release the makers, it would impair the obligation of the con- 
tract? Merely calling it the releasing of one party would 
not change the legal effect of the provision of the law. 

The plain and obvious meaning of the words of the clause 
embraces, and only embraces, unexecuted or unperformed 
agreements. How is it possible for a contract to exist when 
it is fully performed by both parties? When a contract has 
been fulfilled, the contract is then merged into a right in 
possession, but when it was but a contract it was but a right 
in expectancy or in action. When a person contracts to sell 
another an article of personal property, and makes delivery 
according to the terms of the agreement, and receives the 
stipulated price, would it not be a perversion of terms to say 
that a law affecting the title of the purchaser to the property 
thus purchased, impaired the obligation of any kind of con- 
tract between the parties? His right of property would be 
invaded, but no contract would be affected. When the 
charter was granted and accepted, if there ever was a contract 
it was as fully merged as was the contract in the supposed 
sale and delivery of the property. As long as there is any- 
thing to be done under an agreement, there is a contract, but 
when both parties have performed all things required by the 
agreement, then the contract is as absolutely extinguished as 
if it had never existed. 

The Chief Justice, in all of his reasoning to show the neces- 
sity for the adoption of that clause, shows, to my mind, that 
the framers of that clause intended to provide for and protect 
unexecuted or unperformed contracts from legislative inva- 
sion. The whole difficulty grows out of bringing into the 
clause subjects not embraced in the language employed. If 
confined, as the language clearly imports, to unexecuted con- 
tracts, there never would have been the slightest difficultv in 
its application, or danger of its impairing the essential political 



1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 455 

Separate opinion by Walker, J. 

\ : 

powers of the States, and crippling them in the administration 
of government, nor would decisions have been announced 
that impose unequal, and consequently unfair, burthens on 
the masses, and exemptions extended to the privileged few. 
It would carry out the manifest intention of those who framed 
the constitution, and would work injury to no person or 
class of persons. It would accord with every other provi- 
sion of the constitution and the theory of our government. 
If it must embrace executed contracts, then how exclude lim- 
itation laws, dedications to public use, prescriptions, and 
others, which impair the rights of the creditor or former 
owner? 

If a new rule of interpretation is to be adopted, that a sub- 
ject is to be excluded because it would work hardship if it 
were embraced, then all of the provisions of the constitution 
and of the code of statutes are liable to be abrogated. If, 
because divorce laws, limitation laws, insolvent laws and 
prescriptions are to be excluded because they give repose and 
quiet to society and procure its well-being, and therefore 
could not have been intended to be embraced, it may be 
answered, that to have embraced them would not have been 
so disastrous to the public as to embrace a grant of the sover- 
eign powers of the State. Would any one concede the constitu- 
tional power of congress to permanently grant away the 
sovereign powers of the general government? I presume no 
one could be found to indorse such a constitutional heresy; 
and if that body can not, it may be asked by what rule or 
principle the State legislatures may do such an act? 

Believing, as I do, from past decisions of the Federal 

I Supreme Court, that if the power of the legislature to enable 
a municipal corporation to enter into contracts requiring 
years for their fulfillment, was sanctioned as constitutional 
by the State tribunals, the Federal court would hold that the 
State had thereby bartered away its power of repealing the 
charter till the time should expire, I must hold the grant in 
this charter, or other enactment, if it can be construed to 



456 E. St. Louis p. E. St. L. G. L. & C. Co. [May 

Separate opinion by Walker, J. 

authorize such a contract, is unconstitutional and void. It 
is the duty of the officers of the State to use all constitutional 
means to preserve the just rights of the State unimpaired. 
I therefore must hold the law unconstitutional, rather than 
deprive the legislature of what I regard as its constitutional 
and inalienable right. 

In view, therefore, of what I believe that court will hold, 
the cases of Stevens v. School Directors, 87 111. 225, and 
Davis v. School Directors, 92 id. 298, acquire peculiar force. 
In those cases it was held that school directors have no 
power to employ teachers for a longer period than till the 
reorganization of the school board, because if it were 
allowed, it would enable the old board to take the power out 
of the control of the new board, during the period of its 
existence. If a board may employ a teacher for the next 
year or for ten years, just before the new board organizes, 
and if they may thus contract and bind their successors in 
reference to other matters pertaining to the school, it would 
deprive their successors of power the law has vested in and 
to be exercised by them. It would enable an expiring board 
to impose on the district incompetent, inefficient and unde- 
sirable teachers, and to fasten on it unwise, unjust and 
oppressive contracts for long periods. It was held, each board 
must have power to perform all of the duties imposed on them, 
untrammeled by their predecessors; but in organizing a win- 
ter school, if the term should run a short period into the new 
school year, the rule would not necessarily apply. Under 
what I. believe the Federal Supreme Court will hold, no better 
rule can be applied to all municipal bodies. 

But, independent of such a decision, there must be a limit 
as to what matters corporate bodies may contract, and, when 
the subject is within their power to contract, as to the time 
of its duration. It does not follow, that because the city, by 
its mayor and common council, is authorized to erect lamp- 
posts and light the streets, it may enter into a contract 
with a gas company to furnish gas for a third of a century, 






1881.] E. St. Louis v. E. St. L. G. L. & C. Co. 457 

Separate opinion by Walker, J. 

a century, or perpetually. In the absence of express author- 
ity for the purpose, it is reasonable to hold the city was only 
empowered to contract for a period not beyond the next 
election and organization of the new city council, leaving the 
new council in the control and full exercise of the power of 
the city government. It has been seen that the General 
Assembly is not competent to authorize any contract that will 
impair their power of repeal, and this must be 'the limit 
on the period beyond which such contracts can not extend. 
If it had power, the General Assembly could never have con- 
templated, when it authorized the city to erect lamp-posts and 
light the streets, that they were conferring power to contract 
perpetually or even for long periods of time, thus depriving 
the people of all advantage growing out of any newprocesses 
or improvements and competition, reducing prices, or improv- 
ing the quality of light generated. 

Again, this is a portion of the political power of the State 
held in trust by the city, and is incapable of alienation, or its 
exercise abdicated, or of estoppel, so as to place it beyond the 
power of repealing the charter by the General Assembly. As 
a general rule, without exception, one legislature has no power 
to bind a future one not to exercise political power. All 
contracts or grants which impair the legislative or political 
power, do not nor can they bind future bodies entrusted with 
its exercise. To sustain such contracts or grants would be to 
admit the power to subvert the government. Hence the grant 
of power to a municipality to contract for any period, can 
not bind the General Assembly not to repeal its charter, or if 
it does so bind that body, then the contract is void. 

I must, therefore, hold this contract unconstitutional and 
void. 



458 Maghee v. Robinson et at. [May 

Syllabus. 

Gillison Maghee 

v. 
Jo Robinson etal. 

Filed at Mt. Vernon May 11, 1881. 

1. Notice of an equitable title to land — by possession. The actual possession 
of land by a person holding an equitable title to the same, will operate as 
notice of his equitable rights as against a subsequent purchaser at a judi- 
cial or other sale. 

2. Purchaser of equitable title — holds subject to infirmities — of the appli- 
cation of the Recording act. A party taking an equitable title to land, to 
enforce which he must resort to a court of chancery, takes it subject to all 
infirmities existing against it, and can claim nothing under it which the former 
owner could not have claimed. The purchase of an equity gives the pur- 
chaser the estate which he buys, in the condition in which it was when 
bought. 

3. A purchaser of what were known as "swamp lands," from a county, 
received the usual certificates of purchase therefor, and assigned the same to 
another, for a valuable consideration. Subsequent to such assignment, but 
before the recording of the same, judgments were recovered against the orig- 
inal purchaser of the lands, and executions which were issued upon those 
judgments were levied upon the lands, and they were sold. There having 
been no redemption, the officer executed deeds to the purchaser. It was held, 
no estate whatever, either legal or equitable, passed by the execution sale. 
The judgment debtor never held any other than a mere equitable title to the 
lands, and, at the time of the recovei'y of the judgments against him, did not 
have even that interest. It was not essential to the protection of the interests 
of the assignee of the certificates of purchase, as against the judgment creditor 
of his assignor, or the purchaser under the execution sale, that the assign- 
ment should have been recorded. The apparent equity of the judgment 
debtor in the lands, was taken, if it was taken at all, subject to the actually 
existing rights of the assignee, without regard to the question of notice of the 
existence of those rights. 

4. Prior suit pending — effect upon the right to have the same matter consid- 
ered in a subsequent suit. In a suit in chancery instituted by a purchaser of 
lands at an execution sale thereof, it was sought to set aside a transfer of the 
equitable title of the judgment debtor in the lands, upon the alleged ground 
that it was made with intent to defraud creditors. The defendant — the 
assignee of the equitable title of the judgment debtor — filed his cross-bill, 
setting up that the vendor of the judgment debtor had obtained a decree under 
which the lands in controversy had been sold to satisfy an unpaid portion of 



1881.] Maghee v. Eobinson et al, 459 

Brief for the Appellant. 

the purchase money, and that the complainant in the cross-bill had filed his 
bill in chancery in the circuit court in the county in which the lands were 
situate, by which he sought to redeem from the sale under that decree, and to 
enjoin the master from executing a deed for the lands. The complainant in 
the original bill thereupon, by amendment, set up substantially the same 
facts, but alleged that the purchaser at the sale under the decree had assigned 
to him the certificate of purchase, whereby he was himself entitled to a con- 
veyance. Upon a final hearing in the court below, both the original and 
cross-bills were dismissed. The complainant in the cross-bill contended that 
the portion of his cross-bill seeking redemption should have been retained, 
and the relief granted, — but, by reason of the prior institution of the suit in- 
volving the same subject matter, and seeking the same relief as that sought 
by this cross-bill, and that such suit was still depending in the court which 
first acquired jurisdiction, it was held, that the rights of the parties litigant 
in respect to the matter of such redemption would not be considered as in- 
volved in the suit in which the cross-bill had been filed. 

Appeal from the Circuit Court of Perry county. 

This suit was originally instituted in the circuit court of 
Saline county, and subsequently removed, on change of venue, 
to Perry county. 

Mr. Green B. Eatjm, for the appellant: 

The judgments rendered in the United States Circuit Court 
in favor of Maghee & Co. became liens upon the interest of 
Eobinson in the lands in controversy. Eev. Stat. 1845, p. 
300, sec. 1; United States v. Duncan, 12 111. 523; Jones v. 
Guthrie, 23 id. 425. 

Equitable estates are subject to judgment liens. Scates' 
Comp. 602; Niantie Bank v. Dennis, 37 111. 381. 

A judgment is a lien upon land held under a certificate of 
entry or purchase from the United States, and such lien is 
not affected by a subsequent transfer of the certificate by the 
defendant. Rogers v. Brent, 5 Gilm. 573. 

The assignments of the certificates of purchase by Eobinson 
to Groves were such instruments as were required to be re- 
corded. Eev. Stat. 1845, p. 108. 

Whatever a party has acquired as an innocent creditor 
without notice, he has a right to perfect and secure to him- 



460 Ma ghee v. Robinson et al, [May 



Brief for the Appellees. 



self, notwithstanding a subsequent notice. Martin v. Dryden 
et al. 1 Gilm. 218; McClure v. Iglehart, 17 id. 49; Reichert 
et al. v. McClure, 23 id. 518. 

Proof of notice of an unrecorded deed must be made in the 
same manner, and its measure must be the same, as that which 
establishes a fact in any other case. Doyle v. Teas, 4 Scam. 
250; McDonald v. Read, id. 123; Rupert v. Mark, 15 111. 
541; Merrick v. Wallace, 19 id. 486; Morrison v. Kelly, 22 
id. 628; Clark v. Morris, id. 434; Rogers v. Brent, 5 Gilm. 
573. 

Possession under an unrecorded deed, to be notice to sub- 
sequent bona fide purchasers, must be open, visible, and 
exclusive, and must apprise the community that the occupant 
under the unrecorded deed has appropriated the property to 
his exclusive use. Truesdale v. Ford, 37 111. 210; Reeves v. 
Ayers, 38 id. 418; Walden v. Gridley, 36 id. 523. 

Mr. James M. Gregg, for the appellees: 

A person purchasing an equitable estate at sheriff's sale is 
not protected by the disclosures of the record, as in case of a 
legal estate. Such purchaser takes the equitable estate sub- 
ject to all imperfections existing against it, and can claim 
nothing which the judgment debtor could not have claimed. 
Sumner et al. v. Waugli et al. 56 111. 539; Porter v. Darst, 31 
id. 212. 

The purchaser of an equitable title at a sheriff's sale must 
show that the judgment debtor had such equity as he could 
have himself enforced. Hatchet al. v. Wagner, 15 111. 127. 

When a plaintiff in execution purchases an equity at 
sheriff's sale, he takes subject to an unrecorded deed. Swazy 
v. Burk, 12 Peters, 11; Freeman v. McBane, 2 Johns. Ch. 
Rep. 

Appellee Groves is entitled to redeem as grantee or assignee 
of Robinson and Robinson and Hundly, and not being a party 
to the suit to foreclose, such redemption can lawfully be made 
at any time before a remedy by bill to quiet title is barred by 



1881.] Maghee v. Robinson et al. 461 

Opinion of the Court. 

limitation. Hodgen v. Guttery, 58 111. 433; Gardner et al. 
v. Emerson et al. 40 id. 296; Dunlap v. Wilson et al. 32 id. 
517; Eev. Stat. 1874, chap. 77, sec. 18. 

Mr. Justice Scott delivered the opinion of the Court: 

The original bill in this case was exhibited by Gillison 
Maghee, in the circuit court of Saline county, at the April 
term, 1864, against Jo Robinson, George B. Groves, and 
other persons, some of whom had no personal interest in the 
subject of litigation, but who, by reason of their official 
positions, were necessary parties. It is set forth in the bill, 
the firm of J. H. Maghee & Co., of which firm complainant 
was a member, at the January term, 1859, of the Circuit Court 
of the United States for the Southern District of Illinois, 
recovered a judgment against Jo Robinson and others for 
the sum of §5917.53, and at the June term, 1859, of that 
court, they recovered another judgment against Robinson and 
others for the sum of $2153.25. It is alleged, these judg- 
ments became a lien on the lands of Robinson and the other 
defendants, and that, by virtue of executions issued on such 
judgments, the lands involved in this litigation were sold by 
the marshal as the property of Robinson, and were pur- 
chased by complainant. The lands so sold were not redeemed 
from such sale, and afterwards the marshal executed and 
delivered to complainant, deeds for these lands, purporting to 
convey to him the interest Robinson had in such lands. It 
is also set forth, the lands were originally swamp lands, 
belonging to the county of Saline; that Robinson bought of 
the county the lands particularly described in an exhibit 
attached to the bill, and received from the commissioner 
making the sale on behalf of the county, the usual certificate 
of purchase, which would entitle him to a deed on payment 
of the balance of the purchase money, and in like manner 
that Robinson and R. M. Hundly bought of the county the 



462 Maghee v. Robinson et al. [May 

Opinion of the Court. 

lands described in another exhibit, each party having an 
undivided one-half interest in such lands. 

It is charged, that at the time of the rendering of such 
judgments Robinson was the sole owner of the lands bought 
by him, and was the owner of an undivided one-half interest 
in the lands so purchased in connection with Hundly. In 
1862 the duplicate certificates of purchase issued to Robin- 
son and to Robinson and Hundly for these lands, were filed 
in the office of the circuit clerk of Saline county, having as- 
signments thereon from Robinson to George B. Groves, which 
assignments purported to convey all the interest Robinson had 
in the lands embraced in the certificates issued to him as well 
as in those embraced in the certificates issued to him and 
Hundly, and to authorize the proper officers to execute and 
deliver to the assignee deeds for the same. It is further 
alleged, application had been made on behalf of Groves to 
the county clerk of Saline county for the execution of deeds 
on such certificates. 

The bill contains an allegation that the assignments of the 
certificates of purchase were not made on the day of the date 
they purport to have been made, but were made subsequent 
to the rendering of such judgments, with the fraudulent 
intent to defraud the firm of Maghee & Co. out of their 
debt. Complainant explicitly charges he had no notice of 
the assignment of such certificates of purchase by Robinson 
to Groves, until the same were filed for record in the proper 
office. Other matters of minor importance are set forth in 
the bill, but it will not be necessary to state them to an 
understanding of the legal questions discussed. Complain- 
ant, by his bill, submits four propositions for the considera- 
tion of the court, as follows: 

First — Whether it would be lawful for said county clerk to 
execute deeds to said George B. Groves upon the duplicate 
certificates, as aforesaid. 

Second — Whether, in view of the facts, it would be equita- 
ble and just, even if lawful, for said Groves to have deeds 
executed to him. 



1881.] Maghee v. Robinson et al. 463 

Opinion of the Court. 

Third — Whether complainant is entitled to the execution 
of deeds by the county clerk, conveying such lands as com- 
plainant has purchased, as aforesaid, which said Robinson had 
bought from the county, and to which deeds have not already 
been made. 

Fourth — Whether complainant is entitled to the possession 
of the deeds on file in the county clerk's office, as aforesaid, 
that they may be recorded in the recorder's office of Saline 
county. 

An injunction was asked, to restrain the county clerk from 
making or executing deeds to Groves, or any other person, to 
the lands to which complainant claims title. The bill con- 
tains the usual allegation as to combination and confedera- 
tion between defendants to wrong and injure complainant, 
and concludes with a prayer that on the final hearing the 
court will order and decree that the county clerk should 
correct any mistakes that may have occurred in deeds, and 
that such clerk make deeds either to Robinson or complain- 
ant, as the court may think best, and that upon the making 
of such deeds they be delivered to complainant, and that 
the deeds already made to Robinson be delivered to com- 
plainant; that the deeds to Robinson and Hundly, in which 
complainant claims to be interested, shall be filed in the 
circuit clerk's office of Saline county for record; that defend- 
ant Groves be required to deliver to complainant, or to 
such county clerk, the certificates so assigned to him, con- 
taining the lands to which complainant lays claim, or that 
Groves be forever enjoined from setting up any claim by 
virtue of such assignment of certificates, against complainant. 

The answers of Robinson and Groves were not under oath, 
and while they contain general denials of all the principal 
allegations of the bill, they contain also some affirmative 
statements it will be necessary to state, as it is upon them 
the issues were formed, and which are material to the decision 
of the case, — among the most important of which is the 
allegation that Groves was the equitable owner of these 



464 Ma ghee v. Robinson et al. [M 



av 



Opinion of the Court. 



lands, subject, only, to the payment of the balance of the 
purchase money, and that he had, prior to the date of 
the recovery of the judgments of Maghee & Co. against 
Robinson, purchased the interest of Robinson in them, and 
that he was in the actual possession, by himself, or other 
persons for him, of some of the lands — the residue of such 
lands being vacant and unoccupied. There is also a distinct 
affirmation the assignments of the certificates of purchase by 
Robinson to Groves were not made subsequent to the date 
of the judgments in favor of complainant against Robinson, 
or at any other time than the date of such assignments as 
appears on the certificates. 

On the third day of May, 1869, George B. Groves filed a 
cross-bill, making complainant in the original bill a defendant, 
in which he set forth, substantially, the proceedings had on 
the original bill. Among other things, complainant in the 
cross-bill alleged suits were commenced by the drainage com- 
missioner to collect the balance of the purchase money due 
from Robinson, and from Robinson and Hundly, on a large 
portion of the lands described in the exhibits to the original 
bill; that under a decree obtained, the lands were sold to 
John TV. Mitchell, and that before the time for redemption 
expired, complainant in the cross-bill offered to redeem the 
lands from such sale, but the officer that had made the sale 
refused to permit him to do so. And thereupon he filed his 
bill in the circuit court of Saline county, praying, among 
other things, for a writ of injunction restraining the com- 
missioner from making a deed for the lands to Mitchell, and 
for a decree to enable him, as assignee of Robinson, to redeem 
the same. Complainant in the original bill, among others, 
was made defendant to that bill. An amendment to the bill 
shows that Mitchell, before the time of redemption expired, 
had sold and transferred his certificates of purchase to com- 
plainant in the original bill in this case, whereby he became 
vested with all the rights Mitchell had in them. Complain- 
ant, in an amendment to his original bill, states the same 



1881.] Maghee v. Robinson et ah 465 

Opinion of the Court. 

facts, substantially, and insists that by means of his purchase 
of such certificates he became possessed of the outstanding 
lien in favor of the drainage commissioner, and as such lands 
had never been redeemed according to law, he was entitled 
to a deed therefor. 

A number of amendments were made, both to the original 
and cross-bills, in some instances making new parties having 
only a nominal interest, and in others introducing new 
matters, but the case made by either bill was not materially 
changed by such amendments, and to which answers were 
filed, and on filing replications by the respective parties 
issues were made up, on which, together with the testimony 
taken, the cause was submitted. The court dismissed both 
the original and cross-bills. Complainant in the original bill 
brings the case to this court. 

Although this record is very voluminous and much com- 
plicated, our views on the questions discussed may be briefly 
stated. Without discussion, it may be assumed, that whatever 
interest Robinson had, if he had any, in the lands pur- 
chased by himself, or in connection with Hundly, of the 
county of Saline, was subject to the judgments which com- 
plainant obtained against Robinson and others in the United 
States Circuit Court. The question of controlling impor- 
tance is, whether he had any interest, either equitable or legal, 
at the time. It is quite conclusively proved, that prior to the 
dates such judgments were obtained, in January and June, 
1859, Robinson had assigned all the interest he had in the 
certificates of purchase which he held for the lands, to 
Groves, and had assigned and delivered the same to him, 
although such certificates, with the assignments, were not 
recorded until in 1862. There is direct and positive evidence 
of that fact in the record, and nothing that seriously mili- 
tates against it. Nor is there anything that impeaches the 
fairness of the transaction. 

As to that portion of the lands of which Groves had pos- 
session anterior to the judgments, it is plain such possession 
30—98 III. 



466 Ma ghee v. Robinson et al. [May 



Opinion of the Court. 



was notice of his interest in the lands, and his equitable rights 
would prevail over a subsequent purchaser at a judicial or 
other sale. The greatest difficulty arises as to the lands of 
which he had no actual possession. It is not claimed that 
Robinson ever had the legal title to these lands, and 
assuming it to be proven, as must be done, that he had 
assigned the certificates of purchase to Groves prior to the 
date of complainant's judgments against him, he had then no 
equitable title to these lands. The position taken is, that 
inasmuch as the assignments of the certificates to Groves 
were not made a matter of record until long after the judg- 
ments were obtained, and complainant had no actual notice 
of such assignments, the equitable title Robinson acquired to 
the lands by his original purchase was subject to the liens 
of the judgments, and any title that might be acquired under 
execution sale would relate back to the time such liens 
attached. Such is not the law. The question involved has 
been the subject of discussion in at least two cases in this 
court. In Fortier v. Darst, 31 111. 212, it was held a party 
taking an equitable title, to enforce which he must resort to 
a court of chancery, takes it subject to all infirmities existing 
against it, and can claim nothing under it which the former 
owner could not claim. At the date of complainant's judg- 
ments, Robinson, in fact, had no interest whatever in these 
lands. The interest he had, whatever it was, had previously 
passed to Groves, by assignment. It is said, equity deals with 
the purchaser of an equitable title as the law deals with the 
purchaser of a legal title, and regards the purchase as 
incapable either of defeating rights or creating them. "The 
true principle," as was said by this court in Sumner v. 
Wavgh, 56 111. 531, " is, that the purchase of an equity 
gives the purchaser the estate which he buys, in the condi- 
tion in which it is when bought." Recognizing the cases 
cited as accurate expressions of the law on this subject, they 
are conclusive of this branch of the case. And as the judg- 
ment debtor had, in fact, no interest at the time complainant 



1881.] Maghee v. Robinson et al. 467 

Mr. Justice Sheldon, dissenting. 

bought at the execution sale, he obtained no interest in the 
lands. 

Defendant Groves insists he was entitled to a decree 
authorizing a redemption of the lands sold under the decree 
in favor of the drainage commissioner, and it was error to 
dismiss that part of his cross-bill that asked such relief. That 
question was depending in an original suit, commenced in 
the circuit court of Saline county, and, for anything that 
appears in the present record, may have long since been 
determined in that court. That case was before this court at 
a former term, when the judgment of the circuit court was 
reversed, and the cause remanded for further proceedings 
not inconsistent with the opinion of this court then 
announced. Groves v. Maghee, 72 111. 526. It may be pre- 
sumed the mandate of this court has been obeyed, and 
whether it has or not, the cause still appears to be depending 
in that court which first acquired jurisdiction, and the rights 
of the parties litigant will not be considered as involved in 
this case. 

The decree of the circuit court will be affirmed. 

Decree affirmed. 

Sheldon, J., dissenting: Under our Recording act, I 
think that as respects the land of which Groves was not in 
possession, the assignment of the certificate of purchase to 
him should have been previously recorded, to make it valid 
as against the judgment. 

Mtjlkey, J., took no part in the decision of this case. 



468 Seeders v. Allen. [May 

Syllabus. Statement of the case. 

Mary L. Seeders 

v. 

Singleton B. Allen. 

Filed at Springfield May 13, 1881. 

Fraudulent conveyance — investing equitable owner with legal title is not 
fraudulent. Where a wife's land, which she took by inheritance, is, on a. 
partition made by her husband and the other tenant in common, conveyed 
by the latter to both husband and wife, and the latter has said or done nothing 
to induce others to trust her husband, upon the belief of his ownership of the 
same, the conversion of the wife's equitable title to the land into a legal title, 
before any liens attached in favor of her husband's creditors, is not fraudulent 
as to creditors. Her intention to get the legal title in advance of creditors 
who were seeking it, or might seek it, was not a fraudulent intent, but was a 
lawful one. 

Appeal from the Circuit Court of Crawford county; the 
Hon. C. S. Conger, Judge, presiding. 

This was a bill in chancery, filed by Singleton B. Allen, 
assignee in bankruptcy of James B. Seeders, to have set aside 
a certain conveyance made to Mary L. Seeders, the wife of 
the bankrupt. 

It appears, Charles S. Walker died intestate, possessed of 
the land in controversy, leaving two heirs, Orlando Walker, 
and Mary L. Walker, who intermarried with James B. Seed- 
ers. On a partition, made by Orlando Walker and James B. 
Seeders, the formyer conveyed the land involved in this liti- 
gation to James B. Seeders, and Mary L. Seeders, his wife, 
without her direction. This deed was made on May 26, 1873, 
and the property remained in the joint names of the husband 
and .wife upon the records until August 31, 1876, when 
James B. Seeders, and Mary L., his wife, conveyed the same, 
without any consideration, to Orlando Walker, who, on the 
same day, conveyed the same lands, without anv considera- 
tion, to said Mary L. Seeders. 



1881.] Seeders v. Allen. 469 



Brief for the Appellant. 



From May 26, 1873, to August 31, 1876, James B. and 
Mary L. Seeders occupied the land, during which time James 
B. Seeders exercised the care and supervision of the same 
that men usually exercise over their farms, and incurred 
many debts, as was alleged, on the faith of his ownership of 
said lands. On or about March 1, 1877, James B. Seeders, 
the husband, was adjudged a bankrupt, and the appellee ap- 
pointed assignee of his estate, who, on September 13, 1877, 
filed this bill to have the lands subjected to the payment of 
James B. Seeders' debts. 

On the hearing, the court ordered that the deeds of August 
31, 1876, executed by James B. Seeders and wife to Orlando 
Walker, and that of said Walker to Mary L. Seeders, be set 
aside and for naught held as to the half interest of James B. 
Seeders. This appeal is prosecuted to reverse that decree. 

Messrs. Callahan & Jones, for the appellant: 

James B. Seeders had a naked legal title, obtained without 
consideration and without the consent of the owner of the 
equitable estate. He was a mere trustee, and could at any 
time have been compelled by his wife to' convey to her the 
legal title. If she had filed a bill to compel a conveyance to 
her, it would have been the duty of the court to grant the 
relief. Washburn on Real Property, vol. 2, pp. 177 to 182; 
Forbes v. Hall, 34 111. 159; McDowell v. Morgan, 28 id. 533; 
Wilson v. Dyers, 77 id. 76. 

Even if Mrs. Seeders had been silent in regard to the title 
in her husband, her rights would not have been prejudiced 
or the trust in her favor overthrown. Carpenter et al, v. 
Davis, 72 111. 14. 

Seeders was acting for his wife in making the partition. 
It was his duty to have taken title to her. Taking title to 
himself was in violation of his duty to her, and she is entitled 
to the estate. Story's Eq. Jur. sec. 1210, and note 2. 

The equitable claim of Mrs. Seeders was perfect against 
her husband. If the husband had been really in debt to, her 



470 Seeders v. Allen. [May 

Brief for the Appellee. 

for a transaction disconnected with the land, he had a right 
to prefer her as a creditor, and convey the land to her as a 
payment. Thornton v. Davenport, 1 Scam. 298; Francis v. 
Rankin, 84 111. 170. 

No matter how much he was in debt, he had a right to 
sell out his title, even with the avowed intention of defeating 
an honest claim, if no lien existed to forbid it. Waddoms v. 
Humphrey, 22 111. 663; Ewing v.Runhle, 20 id. 460; HerheU 
rath v. Stoohey, 63 id. 486. 

The assignee of James B. Seeders is a mere volunteer, and 
acquired no rights to the prejudice of the equitable interests 
of Mary L. Seeders. Talcottv. Dudley, 4 Scam. 427; Strong 
v. Clawson, 5 Gilm. 346. 

There is no evidence showing any intent on the part of 
Mrs. Seeders to hinder, delay or defeat any creditor of James 
B. Seeders. Her action was an honest attempt to recover the 
legal title to her lands. It makes no difference how fraudu- 
lent his purposes or practices may have been, unless she par- 
ticipated in them this conveyance can not be set aside. 
Ewing v. Runlcle, supra; Hessing v. McCloslcy, 37 111. 351; 
Herhelrath v. Stoohey, supra; Miller et al. v. Kerly, 74 111. 
242. 

The declarations of James B. Seeders not made in the pres- 
ence of his wife should be excluded from this case. Gridly 
v. Bingham, 97 111. 153. 

Messrs. Wilson & Hutchinson, for the appellee : 

Land conveyed in fraud of creditors passes to the assignee 
in bankruptcy of the grantor. Bankrupt law, sec. 4; Pratt 
v. Curtis et al. 6 Bankr. R. 139; Rev. Stat. U. S. sec. 5046. 

That the transaction by which the land was conveyed to 
the wife was fraudulent as to creditors of the husband, coun- 
sel cited Hoclcett et al. v. Bailey, 86 111. 74; Wortman v. 
Price, 47 id. 22; Patten v. Gates, 67 id. 164. 

A voluntary conveyance made by a person who is indebted 
is prima facie fraudulent, and the burden is on the grantee 



1881.] Seeders v. Allen. 471 

Opinion of the Court. 

to show that the debtor had abundant means, besides the 
property conveyed, to pay all his debts. Pratt v. Curtis, 
supra. 

Mr. Chief Justice Dickey delivered the opinion of the 
Court : 

We find no ground for setting aside the deeds by which 
the legal title to the land in question passed from Seeders to 
his wife. The proofs present no indications of fraud on the 
part of Mrs. Seeders, or anything said or done by her inviting 
others to trust her husband upon the supposition that he was 
the real owner of the land. She never, by word or deed, 
held him out as such owner to the world, or to any of these 
(who afterward became) creditors. She was in equity the 
owner, and her equitable title was by these deeds properly 
converted into a legal title, and this before any lien was 
established against the legal title in the hands of her husband. 
Her equity was first in time, and therefore first in right, and 
was first consummated. The intention of Mrs. Seeders to get 
the legal title in advance of creditors who were seeking it, or 
might seek it, was not a fraudulent intent. It was a lawful 
intent. The land was equitably her own, and as between her 
and creditors of her husband she was equitably entitled to it. 
This is not a case of a debtor conveying his own estate to his 
wife, to prevent creditors from seizing it. 

The decree is, therefore, reversed, and the bill dismissed. 

Decree reversed. 



472 Kichmond v. Koberts. [March 

Syllabus. 



John W. Bichmond 

v. 
Virginia Eoberts. 

Filed at Springfield March 21, 1881. 

1. Juror — competency. A juror was asked, in a case involving a breach 
of promise of marriage, by the defendant, " the law being, to entitle the 
plaintiff to recover, she must prove her case by a preponderance of the evi- 
dence, now in case the evidence should be evenly balanced, how would you 
be inclined to find, — for the plaintiff or defendant?" and he answered, "that 
in that case, he would feel inclined to find for the plaintiff." On further 
examination he said he had not formed or expressed any opinion, — that he 
had no bias or prejudice for or against either of the parties, and knew no rea- 
son why he could not sit as an impartial juror and decide the case according 
to the evidence: Held, on challenge for cause, that the juror was competent. 

2. Promise to marry — evidence to prove. In a suit for a breach of 
promise of marriage all the facts and circumstances existing between the par- 
ties prior to, or after the time of the alleged marriage contract, when it is 
denied ever to have existed, tending to establish an engagement, is proper 
evidence for the consideration of the jury. 

3. So where the plaintiff testified that the defendant commenced paying his 
attentions to her as a suitor in the fall of 1873, and during that fall gave her 
a newspaper article entitled, " Love, the Conqueror," marked in his own 
handwriting, "read this," this article, the subject of which was such as would 
be suggested by the title, together with a number of his letters to her prior 
to the time she claimed the engagement to have been made, the defendant 
denying there ever was any engagement, was held properly admitted in evi- 
dence. 

4. Same — withdrawal of defendant's affections, no mitigation of damages. The 
fact that a defendant, before suit, withdrew his affections from the plaintiff, 
whom he was engaged to marry, without cause given by the plaintiff, and 
refused to marry her, will not mitigate or lessen the damages in the case. 

5. Instruction — as confining belief of the jury to the evidence. Where an 
instruction commences by saying, if the jury believe, from the evidence, 
which is soon after repeated, and the latter part concludes with, " the court 
further instructs the jury, that if, when the evidence in the case heard by 
them," etc., "they believe," etc., it will not be held that the jury were misled, 
and came to a conclusion without its being founded on the evidence. 

6. Damages — instruction as ignoring the pecuniary circumstances of the defend- 
ant. An instruction for the plaintiff, in an action for a breach of a promise 



1881.] Richmond v. Roberts. 473 

Statement of the case. 

of marriage, which tells the jury that they may " take into consideration all 
the facts and circumstances proven by the evidence," and that " to them is 
committed the exclusive task of examining the facts and circumstances as 
shown by the evidence, and of awarding the compensation, if any. which the 
plaintiff shall recover," is not obnoxious to the objection that it ignores the 
evidence in the case of the defendant's pecuniary circumstances. 

7. Instructions — no error in refusing to repeat principles. When the sub- 
stance of all that is contained in refused instructions has been given in 
others, there is no error in refusing them. A repetition of the same principle 
in two or more instructions tends to swell the record unnecessarily, and is a 
practice not to be encouraged. 

8. Same — not proper as to the effect of evidence. In an action for a breach 
of promise of marriage, the court refused an instruction asked by the defend- 
ant, that in making up their verdict, they should not take into consideration 
the grammatical construction of the letters written by defendant to plaintiff, 
nor allow the peculiarity of the spelling therein to influence their decision: 
Held, properly refused as invading the province of the jury to pass upon the 
weight and effect of the evidence. 

9. Damages — measure in breach of promise of marriage. The damages to be 
allowed for a breach of a promise of marriage is a question peculiarly 
within the province of a jury, and courts are very unwilling to set aside a 
verdict in such a case on the ground of excessive damages. To justify the 
court in so doing it must believe the verdict was perverse, or the result of 
gross error, misconception or undue motives. 

• Appeal, from the Appellate Court for the Third Dis- 
trict; — heard in that court on appeal from the Circuit Court 
of Tazewell county; the Hon. N. M. Laws, Judge, pre- 
siding. 

This was an action instituted in the circuit court by Vir- 
ginia Roberts against John "W. Richmond to recover upon 
the breach of an alleged promise of marriage. The plaintiff 
claimed that the actual engagement to marry, between herself 
and Richmond, was made about the month of August, 1874. 
Prior to that time, and for several years, they had corres- 
ponded, and upon one occasion Richmond sent to plaintiff 
a newspaper article, with the title, "Love, the Conqueror." 
The subject of the article was such as would be suggested by 
the title. The letters written by him were many of them 



474 Richmond v. Koberts. [March 

Briefs of Counsel. 

written while he was traveling abroad, and gave descriptions 
of what he saw, and were all of a very friendly character. 
Objection was made on the trial, by the defendant, to the 
admission of the newspaper article in evidence, or the letters 
written by him prior to the time of the alleged engagement, — 
but the court permitted them to be read in evidence. This 
ruling is one of the grounds of error alleged. Other facts 
necessary to an understanding of the case, are presented in 
the opinion. 

Mr. C. A. Koberts, and Mr. L. W. James, for the appel- 
lant : 

1. The court erred in not allowing the challenge to the 
juror, John Pawson. That he was incompetent, see Chi* 
cago and Alton R. R. Co. v. Adler, 56 111. 347 ; Galena and 
Southern Wisconsin R. R. Co. v. Haslam et al. 73 id. 495. 

2. The court erred in permitting the newspaper article 
entitled, "Love, the Conqueror," to be read to the jury. 
The delivery of this article was in the fall of 1873, long 
prior to any pretended engagement to marry. The same 
may be said of the defendant's letters from 1 to 14 inclusive, 
they being all prior to the assumed engagement. 

3. The plaintiff failed to establish, by a fair preponder- 
ance of the evidence, a promise to marry and an acceptance. 

Messrs. Cohrs & Green, and Mr. B. S. Prettyman, for 
the appellee : 

In cases of this kind the jury are the sole judges of the 
amount that shall be awarded as damages. Douglas v. Gaus- 
man, 68 111. 170. 

A promise, request or refusal to marry may be proved by 
circumstances as well as by positive proof. Prescott v. Guy- 
ler, 32 111. 312; Greenup v. Stoker, 3 Gilm. 202. 

That letters written before an engagement to marry may 
be read in evidence, can not be questioned. Prescott v. Guy- 
ler, 32 111. 312; Rockafellow v. Newcomb, 57 id. 186. 



1881.] Richmond v. Roberts. 475 

Opinion of the Court. 

To set aside the verdict on the ground of excessive damages, 
it must appear that the jury misunderstood the evidence, or 
were governed by passion or prejudice. Blackburn v.JIauer, 
85 111. 222; Fldler wMeKinley, 21 id. 308; Douglas v. Gaus- 
man, 68 id. 170; Suher v. Yott, 57 id. 166. 

Where a juror is examined and excused peremptorily, this 
will obviate any error in not allowing a challenge for cause. 
Amide v. Young, 69 111. 542; Wilson v. The People, 94 id. 
299. 

Mr. Justice Craig delivered the opinion of the Court : 

This was an action, brought by Virginia Roberts, in the 
circuit court of Tazewell county, against J. W. Richmond, 
for a breach of promise of marriage. On a trial of the cause 
before a jury plaintiff recovered a verdict and judgment for 
$4000, which, on appeal to the Appellate Court, was affirmed. 
To reverse the judgment of the Appellate Court the defend- 
ant appealed to this court. 

In the selection of a jury to try the cause, John Pawson 
was called as a juror, and, after being examined and accepted 
by the plaintiff, the defendant's counsel asked him this question : 
"The law being that to entitle the plaintiff to recover, she 
must prove her case by a preponderance of the evidence, 
now, in case the evidence should be evenly balanced, how 
would you be inclined to find, — for the plaintiff or -defend- 
ant?" The juror answered : "That in that case, he would feel 
inclined to find for the plaintiff." The defendant then chal- 
lenged the juror for cause. 

The juror, upon further interrogation, said : He had not 
formed or expressed any opinion; that he had no bias or pre- 
judice for or against either of the parties, and knew no rea- 
son why he could not sit as an impartial juror and decide the 
case according to the evidence. 

The court refused the challenge, and defendant excepted. 
The juror was then challenged peremptorily by defendant. 



476 Richmond v. Roberts. [March 

Opinion of the Court. 

It is contended by defendant that the court erred in disal- 
lowing the challenge, and, in support of this view, Chicago 
and Alton Railroad Co. v. Adler, 56 111. 347, is cited and 
relied upon. What was there said might seem to sustain the 
position of counsel here, but the juror went further in this 
case than did the juror in the case cited. Here, he says he 
had no bias or prejudice for or against either party, and 
knew of no reason why he could not sit as an impartial juror 
and decide the case according to the evidence. If a juror 
has neither formed nor expressed an opinion, and has no pre- 
judice or bias against either of the parties for any cause what- 
ever, and can sit impartially and decide the issue involved in 
the case according to the evidence, we are of opinion such a 
person is a competent juror. 

On the trial of the cause, the plaintiff testified that defend- 
ant commenced paying his attentions to her as a suitor in 
the fall of 1873; that during that fall defendant gave her a 
newspaper containing an article entitled "Love, the Con- 
queror." This article was marked, in defendant's own hand- 
writing, "read this." The newspaper article, so marked, was 
read in evidence to the jury. Thirty-one letters, written by 
the defendant to the plaintiff, were also read in evidence. 
The letters from one to fourteen inclusive, written prior to 
May 15, 1874, and the newspaper article, defendant contends, 
were incompetent evidence, and that the court erred in.per- 
mitting them to be read to the jury. 

It is true, the plaintiff does not claim an actual engagement 
existed between herself and defendant prior to August, 1874, 
but the defendant denied the existence of a promise to marry 
in August, 1874, or at any other time. Under such circum- 
stances, all the facts and circumstances existing between the 
parties prior to or after the time when the alleged marriage 
contract was entered into, tending to establish an engagement, 
must be regarded as proper evidence for the consideration of 
the jury. The law did not require the plaintiff to prove the 
contract of marriage by witnesses present when it was entered 



1881.] Richmond v. Roberts.. 477 

Opinion of the Court. 

into. Such contracts are usually made in secret, in the ab- 
sence of witnesses, when none but the two contracting par- 
ties are present. 

The letters of the defendant containing his professions of 
love for the plaintiff, the article, "Love, the Conqueror," 
given by the defendant to the plaintiff, with a request in his 
own handwriting that she should read it, were all competent 
evidence. The article may be regarded as the defendant's own 
letter; it doubtless contained sentiments which he sanctioned, 
couched in language more choice than he could compose. It 
was his appeal for marriage, — it foretold in clear and emphatic 
language his object and intent in his courtship with her. 
She doubtless placed this construction upon it, as she well 
might do, and laid it aside as a rare treasure with his other 
letters. The letters and the article in the newspaper were, 
in our judgment, competent evidence for the consideration 
of the jury, in connection with the conduct of defendant and 
the other proof, as tending to prove a mutual engagement 
between the plaintiff and the defendant. 

' It is next urged that the court erred in giving plaintiff's 
instructions eight and nine, and in refusing instructions 
nine, ten, eleven and twelve asked by defendant. Number 
eight, complained of, in substance directed the jury that if 
they found from the evidence defendant withdrew his 
affections from plaintiff and refused to marry her, such with- 
drawal on his part is no defence to the action and affords no 
justification to the defendant for such refusal to marry the 
plaintiff, if proven, and does not mitigate or lessen the dam- 
ages to which plaintiff would be entitled for such breach of 
promise. 

The last clause of the instruction defendant thinks was cal- 
culated to mislead the jury. We perceive nothing in the 
language used calculated to mislead the jury. If the defend- 
ant withdrew his affections from the plaintiff without cause 
given by plaintiff, and refused to marry her, such withdrawal 
could not mitigate or lessen the damages. All the circum- 



478 Richmond v. Roberts. [March 

Opinion of the Court. 

stances under which defendant withdrew his affections and 
refused to marry the plaintiff were before the jury, and noth- 
ing in the instruction prevented the jury from giving due 
consideration to all those circumstances. 

The objection made to the ninth instruction is, that while 
the instruction undertakes to state to the jury what may be 
taken into consideration by them in estimating the damages, 
it ignores the fact of defendant's pecuniary condition, and 
does not confine the belief of the jury, as to amount of 
recovery, to the evidence. 

The instruction commences in the first line by saying, "if 
they believe from the evidence;" this is repeated in the third 
line. In the latter part of the instruction we find this lan- 
guage: "the court instructs the jury that if when the evi- 
dence in the case heard by them, etc. * * * they be- 
lieve/' etc. 

By the instruction the attention of the jury was so often 
called to the fact that they must believe from the evidence, 
that we perceive no room for holding that they could have been 
misled, and come to a conclusion without it was founded on 
the evidence. As to the other objection, we think it too was 
unfounded. The pecuniary condition of the defendant was 
proven before the jury. With this evidence before them, the 
last sentence of the instruction declared, "that the jury must 
take into consideration all the facts and circumstances proven 
by the evidence, and to them is committed the exclusive task 
of examining the facts and circumstances as shown by the 
evidence, and of awarding the compensation, if any, which 
plaintiff shall recover." 

If the jury, as they were told to do by the instruction, 
should take into consideration all the facts and circumstances, 
the pecuniary condition of defendant being one of those 
facts, of course they would consider the evidence showing 
such pecuniary condition. 

We now come to the refused instructions. The substance of 
all that is embraced in the ninth and tenth refused instruc- 



1881.] Eichmond v. Eoberts. 479 

Opinion of the Court. 

tions, was given to the jury in instruction number five, and, if 
it be conceded that nine and ten contain correct propositions 
of law, it was not error to refuse them. A repetition of the 
same principle in two or more instructions, has a tendency 
to swell the record unnecessarily, and a practice of that kind 
should not be encouraged. 

The eleventh refused instruction, in substance, directed the 
jury, that if there was as much evidence to prove that the 
contract was conditional, as there was to prove it uncondi- 
tional, they should find for the defendant. The substance of 
this instruction was given to the jury in number two, as 
follows: 

"2. The court instructs the jury,- for the defendant, that the 
plaintiff in this case claims that there was a contract entered 
into by and between the plaintiff and the defendant, by which 
the defendant unconditionally promised and agreed to marry 
the plaintiff. To recover in this case, the plaintiff must prove 
by a preponderance of evidence that the defendant did un- 
conditionally agree and promise the plaintiff to marry her." 

The last refused instruction was as follows : 

il The court instructs the jury, that in making up your ver- 
dict, you will not take into consideration the grammatical 
construction of the letters written by defendant to plaintiff, 
nor allow the peculiarity of the spelling therein to influence 
your decision." 

The weight to be given to evidence introduced on the trial 
of a cause is a matter for the determination of a jury, and 
it is not within the province of the court to dictate to the jury 
on the subject. For this reason the instruction was no doubt 
refused, and we think properly. The letters were competent 
evidence for the consideration of the jury, and if the court 
had the right to express an opinion in regard to their bear- 



480 Eichmond v. Eoberts. [March 

Opinion of the Court. 

ing in one respect it might in another, and thus usurp 
entirely the province of the jury. 

It is also urged that the damages are excessive. The 
amount of damages to be allowed in an action of this kind, 
is a question peculiarly within the power of a jury, and, as is 
said by Parsons on Contracts, vol. 2, p. 68, courts, both in 
England and in this country, are very unwilling to set aside a 
verdict in these cases on the ground of excessive damages. 
In Goodall v. Thurman, 1 Head, 209, the rule is declared 
to be that the amount of damages rests in the sound discre- 
tion of the jury, who are to look, at the rank and condition 
of the parties, the estate of the defendant, and to all the 
facts proven in the case, and award damages commensurate 
with the injury inflicted. In Gough v. Farr, 1 Y and J, 
477, an action for breach of promise, it was held, 
the principle which governs the courts in cases of this 
description, is not whether they think the damages too large, 
but whether they be so large as to satisfy the court that the 
verdict was perverse, and the result of gross error, miscon- 
ception, or undue motives. 

This case, it is true, was not attended with any aggravat- 
ing circumstances. There was no seduction, nor was there 
any attempt on the part of defendant to injure or cast any 
reflection upon the character of the plaintiff. But on the 
other hand he has always spoken of plaintiff in high terms, 
and his refusal to consummate an engagement which from 
the evidence was doubtless made, seems to have been from a 
change of feelings on his part toward the plaintiff, but we are 
not prepared to say that the damages are so excessive as to 
authorize a court to believe that the verdict was perverse and 
the result of gross error, misconception or undue motives. 

The judgment of the Appellate Court will be affirmed. 

Judgment affirmed. 






1881.] Wabash Ey. Co. v. Elliott. 481 

Syllabus. Statement of the case. 



The Wabash Eailway Company 

v. 

Ewing H. Elliott. 

Filed at Springfield May IS, 1881. 

1. Negligence — care required of plaintiff, to recover. A servant of a rail- 
way company, to recover of the company for a personal injury growing out 
of alleged negligence on the part of the company, must have used ordinary 
care on his part, considering his surroundings, — that is, such care as men of 
ordinary prudence would usually exercise under the same or like circum- 
stances. 

2. Same — negligence of plaintiff is a question for the jury. It is not 
the province of the circuit court to determine, in an action to recover for 
an injury occasioned by the alleged negligence of the defendant, what cir- 
cumstances will be sufficient to charge a plaintiff with want of ordinary care, 
and thus prevent a recovery by him. Therefore, an instruction which directs 
the jury, in substance, what circumstances will show or constitute a want 
of ordinary care in the plaintiff, is properly refused. 

Appeal from the Appellate Court for the Third District ; — 
heard in that court on appeal from the Circuit Court of 
Brown county; the Hon. S. P. Shope, Judge, presiding. 

This was an action on the case, by the appellee against the 
appellant, brought in the circuit court of Brown county, to 
recover for personal injury alleged to have resulted from 
negligence on the part of the appellant. 

The negligence charged in the declaration was, that the 
railway company placed an iron rod or timber across the top 
of the west end of the bridge on its road, at Valley City, so 
low as to endanger the lives and safety of the employees of 
the company, and negligently permitted it to remain in such 
dangerous position until the plaintiff, as brakeman, while on 
the top of a train, in the line of his duty, using due care, was 
struck and injured on the head by the rod or timber, as the 
train was coming from the west, on July 3, 1878. 
31—98 III. 



482 Wabash Ky. Co. v. Elliott. [May 

_ 

Brief for the Appellant. 

The trial resulted in a verdict and judgment in favor of 
the appellee for $2500, which judgment was affirmed by the 
Appellate Court for the Third District. The railway com- 
pany brings the case to this court by appeal, and assigns for 
error, that the verdict, on the evidence, should have been set 
aside, and also that the court erred in refusing: its sixth 
instruction asked. That instruction reads as follows : 

" The law, for wise purposes, requires every sane man to 
use and employ his reason and his senses under all ordinary 
circumstances of life; and if the jury believe, from the evi- 
dence, that the plaintiff, as brakeman, before the injury com- 
plained of, enjoyed fair and reasonable opportunities for 
acquiring a knowledge of the condition of said bridge, and 
the danger arising therefrom, — if any there was, — but ignor- 
ing such opportunities, and refusing or neglecting to avail him- 
self thereof, willfully or negligently remained in ignorance 
of the condition of said bridge, if the same was dangerous, 
he can not take or derive any advantage from such ignorance, 
but his rights are to be determined the same as if he pos- 
sessed the knowledge he might have acquired by the reason- 
able exercise of his faculties." 

Messrs. Brown, Kirby & Eussell, and Mr. W. L. Yan- 
deventer, for the appellant: 

The circuit court erred in refusing a new trial to the appel- 
lant, and the Appellate Court erred in not reversing the 
judgment of the circuit court for that reason. Indianapolis, 
Bloomington and Western Railroad Co. v. Flanigan, 77 111. 
371 ; Illinois Central Railroad Co. v. Welch, 52 id. 188. 

If the plaintiff knew of the danger complained of, he 
should have quit the service of the company, unless induced 
by the company to believe a change would be made, and 
his continuing in the company's employ with such knowledge 
prevents a recovery for any injury occasioned by the known 
danger. Camp Point Mfg. Co. v. Ballon, 71 111. 417; Chi- 
cago and Alton Railroad Co. v. Munroe, 85 id. 25; Shearm. 



1881.] Wabash Ey. Co. * Elliott. ; 483 

Brief for the Appellee. 

& Redf. on Neg. § 94 ; Buzzell v. Laconia Mfg. Co. 48 Me. 
113; Patterson v. Wallace, 1 Macg. H. L. 748; Loonam v. 
Brochway, 3 Robertson, 74; Mad River Railroad Co. v. 
Barber, 5 Ohio St. 541 ; Griffiths v. (?Mo.w, 3 Hurls. & N. 
648; McGlynn v. Brodie, 31 Cal. 376; Hay den v. Smithville 
Mfg. Co. 29 Conn. 549 ; Wright v. JVew For/c Central Railroad 
Co. 25 N. Y. 562 ; Pnes% v. i^wfor, 3 M. & W. 1 ; Xtywara 
v. Leach, 40 Eng. L. & Eq. 491 ; Woodley v. Metropolitan 
Railway Co. 2 Law Times, 384; Indianapolis, Bloomington 
and Western Railroad Co. v. Flanigan, supra; Chicago, Bur- 
lington and Quincy Railroad Co. v. Clark, 2 Bradw. 596 ; 
Illinois Central Railroad Co. v. Jewell, 46 111. 99; DeWitt v. 
Pacific Railroad, 50 Mo. 302 ; Baylor v. Delaware Railroad 
Co. 40 1ST. J. L. 23 ; Owen v. JVew Fpdfc Railroad, 1 Lansing, 
108 ; 2 Thomp. on Neg. 1013. 

Where the servant's action is founded on the assumption 
that the master ought to have known of the defect which 
caused the injury, it is clearly a sufficient defence to show 
that the servant had equal means of knowledge. Shearm. & 
Redf. on Neg. § 94. 

If one knowingly exposes himself to danger which can be 
readily avoided, and sustains injury, he must attribute it to 
his own negligence. City of Bloomington v. Read, 2 Bradw. 
547 ; Toledo, Wabash and Western Railway Co. v. Eddy, 14c 
111. 138. 

There was error in refusing appellant's sixth instruction. 
That it contains a correct proposition of law, we refer the 
court to the following authorities : St. Louis and Southeast- 
ern Railroad Co. v. Britz, 72 111. 257 ; Indianapolis, Bloom- 
ington and Western Railroad Co. v. Flanigan, supra; Shearm. 
and Redf. on Neg. § 94; Whart. on Neg. §214. 

Mr. John J. McDannold, Messrs. Ewing & Hamilton, 
and Mr. William H. Barnes, for the appellee : 

Knowledge on the part of the servant, that the machine or 
appliance is defective or dangerous, while not sufficient of 



484 . Wabash B,y. Co. v. Elliott. [May 

Opinion of the Court. 

itself to take the case from the jury, is, nevertheless, evi- 
dence of negligence to go to the jury. Thompson on Neg. 
1015; Shanny v. Androscoggin, 66 Me. 420; Coombs v. New 
Bedford C. Co. 102 Mass. 572. 

This doctrine applies even to a case where the servant is 
injured by the machine or appliance he works with, of which 
he is presumed to have the best means of knowledge. But 
the case is very different where his injury is caused by other 
defects of which he has no better means of knowledge than 
his employer. In this State it is settled doctrine, that he may 
presume that there is no dangerous defect in the te construc- 
tion of the road, and its appurtenances and bridges." Mail- 
road Co. v. Swebb, 45 111. 197; Fairbanh v. Hamtzche, 73 
id. 239; Thompson on Neg. l6l2. This instruction was 
refused in Dorsey v. Phillip & Co. 72 Wis. 583. The Flani- 
gan case (77 111. 365,) is not authority against this view, as 
the injury was caused by a defect in the coupling of the car 
the servant was working with. The Britz case (72 111. 256,) 
is not applicable for the same reason, and is less in point. It 
is not the law applicable to this case to tell the jury that 
plaintiff's " rights are to be determined the same as if he pos- 
sessed the knowledge he might have acquired by the reason- 
able exercise of his faculties." 

Mr. Chief Justice Dickjey delivered the opinion of the 
Court: 

As to the weight of the evidence relating to the allegation 
of facts, the judgment of the Appellate Court is conclusive. 
As to the instruction asked by the appellant, and which the 
circuit court refused to give, we think the decisio